07/24 - This is My Land - John Locke's Theory of Property - HARVARD's Michael Sandel's JUSTICE

Today we turn to John Locke. On the face of it, Locke is a powerful ally of the libertarian. First, he believes, as libertarians today maintain, that there are certain fundamental individual rights that are so important that no government, even a representative government, even a democratically elected government, can override them. Not only that, he believes that those fundamental rights include a natural right to life, liberty, and property. And, furthermore, he argues that the right to property is not just the creation of government or of law. The right to property is a natural right in the sense that it is pre-political. It is a right that attaches to individuals as human beings, even before government comes on the scene, even before parliaments and legislatures enact laws to define rights and to enforce them. Locke says, in order to think about what it means to have a natural right, we have to imagine the way things are before government, before law. And that's what Locke means by the state of nature. He says the state of nature is a state of liberty. Human beings are free and equal beings. There is no natural hierarchy. It's not the case that some people are born to be kings and others are born to be serfs. We are free and equal in the state of nature. And yet, he makes the point that there's a difference between a state of liberty and a state of license. And the reason is that even in the state of nature there is a kind of law. It's not the kind of law that legislatures enact. It's a law of nature. And this law of nature constrains what we can do even though we're free, even though we're in the state of nature. Well, what are the constraints? The only constraint given by the law of nature is that the rights we have, the natural rights we have, we can't give up. Nor can we take them from somebody else. Under the law of nature, I'm not free to take somebody else's life or liberty or property. Nor am I free to take my own life or liberty or property. Even though I'm free, I'm not free to violate the law of nature. I'm not free to take my own life or to sell myself into slavery or to give to somebody else arbitrary absolute power over me. So where does this constraint, you may think it's a fairly minimal constraint, but where does it come from? Well, Locke tells us where it comes from and he gives two answers. Here's the first answer. For men, being all the workmanship of one omnipotent and infinitely wise maker, namely God, they are his property whose workmanship they are made to last during his, not one another's, pleasure. So one answer to the question is why can't I give up my natural rights to life, liberty, and property is, well, they're not strictly speaking yours. After all, you are the creature of God. God has a bigger property right in us, a prior property right. Now you might say that's an unsatisfying, unconvincing answer, at least for those who don't believe in God. What did Locke have to say to them? Well, here's where Locke appeals to the idea of reason. And this is the idea that if we properly reflect on what it means to be free, we will be led to the conclusion that freedom can't just be a matter of doing whatever we want. I think this is what Locke means when he says, the state of nature has a law of nature to govern it which obliges everyone and reason, which is that law, teaches mankind who will but consult it that all being equal and independent, no one ought to harm another in his life, health, liberty, or possessions. This leads to a puzzling paradoxical feature of Locke's account of rights. Familiar in one sense, but strange in another. It's the idea that our natural rights are unalienable. What does unalienable mean? It's not for us to alienate them or to give them up, to give them away, to trade them away, to sell them. Consider an airline ticket. Airline tickets are non-transferable or tickets to the Patriots or to the Red Sox. Non-transferable tickets are unalienable. I own them in the limited sense that I can use them for myself but I can't trade them away. So in one sense an unalienable right, a non-transferable right makes something I own less fully mine. But in another sense of unalienable rights, especially where we're thinking about life, liberty, and property, for a right to be unalienable makes it more deeply, more profoundly mine. And that's Locke's sense of unalienable. We see it in the American Declaration of Independence. Thomas Jefferson drew on this idea of Locke. Unalienable rights to life, liberty, and as Jefferson amended Locke, to the pursuit of happiness. Unalienable rights. Rights that are so essentially mine that even I can't trade them away or give them up. So these are the rights we have in the state of nature. Before there is any government, in the case of life and liberty, I can't take my own life, I can't sell myself into slavery any more than I can take somebody else's life or take someone else's slave by force. But how does that work in the case of property? Because it's essential to Locke's case that private property can arise even before there is any government. How can there be a right to private property even before there is any government? Locke's famous answer comes in section twenty seven. Every man has a property in his own person. This nobody has any right to but himself. The labor of his body and the work of his hands we may say are properly his. So he moves as the libertarians later would move from the idea that we own ourselves that we have property in our persons to the closely connected idea that we own our own labor. And from that to the further claim that whatever we mix our labor with that is unowned becomes our property. Whatever he removes out of the state that nature has provided and left it in he has mixed his labor with and joined it to something that is his own and thereby makes it his property. Why? Because the labor is the unquestionable property of the laborer and therefore no one but the laborer can have a right to what is joined to or mixed with his labor. And then he adds this important provision at least where there is enough and is good left in common for others. But we not only acquire a property in the fruits of the earth, in the deer that we hunt, in the fish that we catch, but also if we till and plow and enclose the land and grow potatoes we own not only the potatoes but the land, the earth. As much land as a man tills, plants, improves, cultivates, and can use the product of so much is his property. He by his labor encloses it from the commons. The idea that rights are unalienable seems to distance Locke from the libertarian. The libertarian wants to say we have an absolute property right in ourselves and therefore we can do with ourselves whatever we want. Locke is not a sturdy ally for that view. In fact he says if you take natural rights seriously you'll be led to the idea that there are certain constraints on what we can do with our natural rights, constraints given either by God or by reason reflecting on what it means really to be free. And really to be free means recognizing that our rights are unalienable. So here's the difference between Locke and the libertarians but when it comes to Locke's account of private property he begins to look again like a pretty good ally because his argument for private property begins with the idea that we are the proprietors of our own person and therefore of our labor and therefore of the fruits of our labor including not only the things we gather and hunt in the state of nature but also we acquire a property right in the land that we enclose and cultivate and improve. There are some examples that can bring out the moral intuition that our labor can take something that is unowned and make it ours. Though sometimes there are disputes about this. There's a debate among rich countries and developing countries about trade related intellectual property rights. It came to a head recently over drug patent laws. Western countries and especially United States say we have a big pharmaceutical industry that develops new drugs. We want all countries in the world to agree to respect the patents. Then there came along the AIDS crisis in South Africa. The American AIDS drugs were hugely expensive far more than could be afforded by most Africans. So the South African government said we're going to begin to buy a generic version of the AIDS antiretroviral drug at a tiny fraction of the cost because we can find an Indian manufacturing company that figures out how the thing is made and produces it and for a tiny fraction of the cost we can save lives if we don't respect that patent. Then the American government said no here's a company that invested research and created this drug. You can't just start mass producing these drugs without paying a licensing fee. So there was a dispute. The pharmaceutical companies sued the South African government to try to prevent their buying the cheap generic as they saw it pirated version of an AIDS drug. Eventually the pharmaceutical industry gave in and said all right you can do that. But this dispute about what the rules of property should be of intellectual property of drug patenting in a way is the last frontier of the state of nature because among nations where there is no uniform law of patent rights and property rights it's up for grabs until by some act of consent some international agreement people enter into some settled rules. What about Locke's account of private property and how it can arise before government and before law comes on the scene? Is it successful? How many think it's pretty persuasive? How many don't find it persuasive? Let's hear from some critics. What is wrong with Locke's account of how private property can arise without consent? I think it justifies European cultural norms as far as when you look at how Native Americans may not have cultivated American land but by their arrival in the Americas that contributed to the development of America which wouldn't have otherwise necessarily happened then or by that specific group. So you think that this is a defense, this defense of private property in land? Yes, because it complicates original acquisition if you only cite the arrival of foreigners that cultivated the land. I see. And what's your name? Rochelle. Rochelle says this account of how property arises would fit what was going on in North America during the time of the European settlement. Do you think, Rochelle, that it's a way of defending the appropriation of the land? Indeed, because he's also justifying the glorious revolution so I don't think it's inconceivable that he's also justifying colonization as well. Well, it's an interesting historical suggestion and I think there's a lot to be said for it. What do you think of the validity of his argument though? Because if you're right that this would justify the taking of land in North America from Native Americans who didn't enclose it, if it's a good argument then Locke's given us a justification for that. If it's a bad argument then Locke's given us a mere rationalization that isn't morally defensible. I'm leaning to the second one, but that's my opinion as well. Alright, well then let's hear if there's a defender of Locke's account of private property and it would be interesting if they could address Rochelle's worry that this is just a way of defending the appropriation of land by the American colonists from the Native Americans who didn't enclose it. Is there someone who will defend Locke on that point? Are you going to defend Locke? You're accusing him of justifying the European massacre of the Native Americans but who says he's defending it? Maybe the European colonization isn't right. Maybe it's the state of war that he talked about in his second treatise. So the wars between the Native Americans and the colonists, the settlers, that might have been the state of war that we can only emerge from by an agreement or an act of consent and that's what would have been required fairly to resolve it. Yeah, and both sides would have had to agree to it and carry it out and everything. But what about, and what's your name? Dan. But Dan, what about Rochelle says this argument in section 27 and then in 32 about appropriating land, that argument, if it's valid, would justify the settlers appropriating that land and excluding others from it. You think that argument's a good argument? Well, doesn't it kind of imply that the Native Americans hadn't already done that? Well, the Native Americans as hunter-gatherers didn't actually enclose enclosed land, so I think Rochelle is onto something there. But I want to, go ahead, Dan. At the same time, he's saying that just by picking an acorn or taking an apple or maybe killing a buffalo on a certain amount of land, that makes it yours because it's your labor and that's, you know, your labor would enclose that land. So, by that definition, maybe they didn't have fences around little plots of land, but didn't. They were using it. Yeah, by Locke's definition. So maybe by Locke's definition the Native Americans could have claimed a property right in the land itself. But they just didn't have Locke on their side, as she points out. Okay, that's good. One more defender of Locke. Go ahead. Well, I mean, just to defend Locke, he does say that there are sometimes in which you can't take another person's land. For example, you can't acquire land that is common property. See, people, in terms of American Indians, I feel like they already have civilizations themselves and they were using land in common, so it's kind of like what, an analogy to what he was talking about with, like, the common English property. You can't take land that everybody is sharing in common, and also you can't, you can't take land unless you make sure that there's as much land as possible left for other people to take as well. So, if you're taking common, so you have to make sure that whenever you take land, that there's enough left for other people to use. That's just as good as the land that you took. That's, it's true. Locke says there has to be this right to private property in the earth is subject to the provision that there be as much and as good left for others. What's your name? I'm Fang. So Fang, in a way, agrees with Dan that maybe there is a claim within Locke's framework that could be developed on behalf of the Native Americans. Here's the further question. If the right to private property is natural, not conventional, if it's something that we acquire even before we agree to government, how does that right constrain what a legitimate government can do? In order finally to see whether Locke is an ally or potentially a critic of the libertarian idea of the state, we have to ask what becomes of our natural rights once we enter into society. We know that the way we enter into society is by consent, by agreement. To leave the state of nature and to be governed by the majority and by a system of laws, human laws. But those human laws are only legitimate if they respect our natural rights, if they respect our unalienable rights to life, liberty, and property. No parliament, no legislature, however democratic its credentials can legitimately violate our natural rights. This idea that no law can violate our right to life, liberty, and property would seem to support the idea of a government so limited that it would gladden the heart of the libertarian after all. But those hearts should not be so quickly gladdened because even though for Locke the law of nature persists once government arrives, even though Locke insists on limited government, government limited by the end for which it was created, namely the preservation of property, even so there's an important sense in which what counts as my property, what counts as respecting my life and liberty are for the government to define. Let there be property, let there be respect for life and liberty is what limits government. But what counts as respecting my life and respecting my property that is for governments to decide and to define. How can that be? Is Locke contradicting himself or is there an important distinction here? In order to answer that question which will decide Locke's fit with the libertarian view, we need to look closely at what legitimate government looks like for Locke and we turn to that next time.