Against Locke: Part 3

by John Quiggin on August 15, 2016

The third and final instalment of my critique of Locke’s theory of appropriation/expropriation is up at Jacobin. I turn my attention from Locke to Jefferson, Locke’s most important follower, in practice as well as theory. By opening the Louisiana purchase for agricultural settlement, Jefferson put to the test Locke’s theory of appropriation to a practical test. In particular, the vastness of the land, compared with the modest requirements of the ideal Jeffersonian farm family seemed to support Jefferson’s prediction that the new land would be enough to last a thousand generations. But of course the opposite was true: in less than one generation, the United States had overspilled the boundaries of Jefferson’s purchase and was embroiled in a civil war that started with battles over the newly opened land. To restate the conclusion of the previous instalments, Locke’s theory was designed to justify expropriation and enslavement. Neither Locke nor epigones such as Nozick and Rothbard can provide a coherent theory of just appropriation of property.

{ 73 comments }

1

oldster 08.15.16 at 11:00 am

Nice piece. Short and to the point.

2

James Wimberley 08.15.16 at 11:17 am

From the liked article:
“Locke’s proviso is fundamentally at variance with the core doctrine of classical and neoclassical economics, that human needs and desires are unlimited while resources are invariably scarce.”
Unlimited desires? Challenge on the classicals. I had thought that the doctrine of insatiable wants was a cheap talking-point in response to the Marxist dream of red plenty. Adam Smith had more sense.

The standard theory of utility is that individual wants are on the contrary satiable, as the marginal utility of a single good declines to zero or negative territory. (The hundredth bottle of Dom Pérignon will kill you.) It seems consistent with common sense and observation. Of course, as our basic wants are satisfied, we find other things to do and therefore to want, ranging from the life-enhancing (artistic, intellectual or sporting excellence) through the neutral (art or stamp collecting) to the pathological desire for social domination or endless acres. The mechanisms by which these wants emerge is unclear, and the Marcuse explanation that wants are fabricated by evil advertisers is ridiculous.

BTW, the scarcity of resources is something of a tautology. If it’s not scarce, it isn’t a resource. Goods go in and out of scarcity all the time. Basic clothing is now so cheap in developed countries as not to matter. Renewable energy is becoming so. Clean air, free in 1700, is now scarce. Whether farmland is scarce depends on population, as JQ’s pocket history of the Louisiana Purchase brings out.

3

James Wimberley 08.15.16 at 11:19 am

“Linked”, though “liked” also fits.

4

Faustusnotes 08.15.16 at 11:38 am

John I’m not sure of the basis for your claim that we can “set aside” the dispossession of the original inhabitants, and I think you partly base this on a misreading of Native American history. It appears that the story of the collapse of the project is at least partly tied to the need to get new land, since the lockean smallholders were pushed out by slaveholders (also another form of dispossession) and then had to either fight over dwindling land or fight for new land – presumably they fought each other because they couldn’t fight the natives. The related point is that you say native Americans weren’t “mixing toil and soil” so from the lockean perspective weren’t landowners. I think we both know this was a convenient rhetorical point, since everyone involved knows that they were the rightful owners. But it also isn’t even true -you seem to be implying here that native Americans weren’t farmers but it’s my understanding that all the southern people’s were, from Florida to New Mexico, and I have also read that even the plains Indians were – that they became nomadic after white people brought horses and their whole society revolutionized around the horse and the buffalo. I think this is important because it gives a post colonial critique of Locke that ends before yours starts – that the primordial definition of property rights only exists for white people and no one ever made an effort to observe it fairly and honestly in the new world, because they couldn’t – land has been owned everywhere since the beginning of time, and lockes definition of ownership was bullshit even by its own lights, even in the new world.

(Also I really hate seeing lazy repetition of ideas like “native Americans didn’t farm” and the attendant spin off excuse for dispossession, “oh those crusty old white dudes genuinely thought the land wasn’t being used because it wasn’t being farmed” . It was being farmed, and the crusty old white dudes killed the farmers)

5

Chris Bertram 08.15.16 at 12:04 pm

@JohnQ can you say more about this passage?

“By reviving the proviso in a slightly weakened form, Nozick seeks to provide a theoretical justification that allows some property holders to expropriate others by breaking the legal and fiscal obligations under which those rights were acquired.”

6

Peter T 08.15.16 at 12:37 pm

The small-holder who owns what he possesses by right of his own toil would, ironically, be a fair description of the Amerindian farmers of the eastern states, with their garden plots. Europeans, with their iron tools, woven cloth and numerous other essentials, were always closely linked economically to the wider society.

Philosophical efforts to justify possession external to society or the state are, as you note, doomed to failure. Yet they persist. The obvious motive is to shut out any discussion of society or the state’s role in the redistribution of property. Locke would have been acutely aware of this possibility, both from the redistributions occasioned by the English civil wars and his own dealings in attainted property in Ireland. Jefferson, too, would have been well aware of the usual fate of rebels in this regard. And periodic adjustments of property holding were a feature of many European systems as well as of the Ottoman and Mughal ones.

The motive remains in force, so the arguments will continue to be made. But one consequence of insisting on very strong rights in property is that it makes redistribution without violence more difficult. If you will not allow lawful confiscation from time to time you will get seizure by force.

7

MPAVictoria 08.15.16 at 1:40 pm

Enjoyed the piece John. As a Jacobin subscriber I hope you keep writing for them.

8

Zamfir 08.15.16 at 1:44 pm

To play devil’s advocate: when you talk about the modern situation, you mention resource extraction and intellectual property as “tainted” forms of property. Those don’t cover the entire span of modern riches. The idealized, emblematic self-made rich man is portrayed primarily as a builder of an organization. That organization might extract resources, or rely on intellectual property, or it could do something else entirely.

The typical justification of rich people for their own riches is not so much the nuts and bolts activity of their business (which they are rarely directly involved in themselves), it’s the work of setting up and leading that business, as an organization. They claim, rightly or wrongly, that the business would not exist without their unique talents, vision, drive, hard work, you know the buzzwords. They have “created” a new, better business that would not exist without them, and say that it’s only fair if they get to own most of that.

If you’re inclined to like business owners (more than I am), if you think that they are individually the main creator of their business, then this kind of business-as-property lines up fairly well with Lockean ideas – better than land ever did. It’s created ex nihilo, by mixing toil with the property, anyone is free to set up an even better model and take your spot.

9

bruce wilder 08.15.16 at 2:00 pm

If you will not allow lawful confiscation from time to time you will get seizure by force.

Lawful confiscation is just seizure by force rationalized in ways suitable to particular circumstances, or am I missing something?

10

Peter Erwin 08.15.16 at 2:19 pm

… in less than one generation, the United States had overspilled the boundaries of Jefferson’s purchase and was embroiled in a civil war that started with battles over the newly opened land.

Minor nitpick:

Louisiana purchase: 1803
Start of American Civil War: 1861

58 years is more like two generations. (“Less than one human lifespan” would work, if you want to stick with the “In less than one X” rhetoric.)

11

GG 08.15.16 at 2:25 pm

A tangential, but related, question which has coincidently been on my mind recently: Once we dismiss Locke, under what system of property rights can the earliest indigenous people s (anywhere, not just America) be said to “own” their land? What theory of acquisition supports this claim?

12

Evan Neely 08.15.16 at 2:30 pm

Two things about this:
1. What you call the contradiction of founding a defense of capitalism on a Lockean notion of property acquisition is formulable as a performative contradiction, and thus has a pretty big rhetorical value when dealing with propertarians, who seem to fetishize those things (I’m thinking of Hoppe’s asinine “argumentation ethics”). Basically, if propertarianism, even if morally right, is a legal framework governing human relations according to a relatively simple rule (you “mix your labor with it,” it’s yours in perpetuity, and the state can do nothing but enforce that) that is, by their own admission, not currently in place (arguing that it should be instituted and/or respected is implying that it is not currently instituted/respected), then putting it in place without liquidating all present property holding (since we’re all getting stuff according to the bad rules, and the liquidation of which is really, really hard to do considering all the stuff we now call property) is effectively retrenching the title of people who acquired their stuff by unjust means. Therefore, you can’t institute a propertarian system of goods distribution without contradicting the rules of that system.

2. I’m wondering if there isn’t a connection between Rothbard and Nozick’s shift away from the strict Lockean position isn’t related to the increasingly strenuous denial of the idea that denying people access to vital goods is coercion. This used to be something propertarians recognized as obviously true – you see it in (if I remember correctly) the 41st and 42nd paragraphs of the First Treatise: Locke basically says taking advantage of hardship is the same thing as holding someone at knifepoint. Now the epigones deny it. But I don’t want to have to read Rothbard again to see if there really is a connection, or if it’s all just motivated thinking.

13

bruce wilder 08.15.16 at 2:54 pm

in less than one generation, the United States had overspilled the boundaries of Jefferson’s purchase and was embroiled in a civil war

Just thirty years after the Louisiana Purchase, the United States had overspilled its boundaries and grabbed the Southwest from Mexico, Oregon and Washington from Canada, and everything in between from the indigenous inhabitants.

The Louisiana Purchase occurred in 1803. Polk’s settlement of the northern boundary with the British and war with Mexico occurred in 1846. That’s at least forty years, not thirty. The American Civil War began in 1861, rather more than a generation since the Purchase.

The sovereign claims of indigenous peoples were disputed, fought over and negotiated over a much longer period and, of course, were never extinguished entirely or over “everything”.

Canada did not come into existence as a confederation until 1867 and British Columbia became its sixth province in 1871. In the period of condominium in the northwest, from 1818 to 1846, British interests were represented primarily by the Hudson’s Bay Company, which had a monopoly on trade with the indigenous peoples, but no territorial property claim as such. Vancouver was founded as a crown colony in 1849, after the boundary had been settled.

These are mostly quibbles, but this kind of careless rhetorical exaggeration regarding history does your argument over philosophy no favors.

14

Chris Bertram 08.15.16 at 3:00 pm

@GG the claims of indigenous people don’t do well under Locke, because according to him, many such peoples fail to have the right relationship to the land: they’re not improving it, working on it etc. Theories of first occupancy might provide an answer you like better, though I don’t think they fit with JQ’s approach either.

15

CJColucci 08.15.16 at 3:00 pm

The late J.L. Mackie once wrote that there was no natural law of property, but it was natural that there be some law of property. Hume, if I recall, thought much the same thing, and believed that a vast range of arrangements could be justified under differing practical circumstances, and that there was little more to be said about it.

16

Marc 08.15.16 at 3:21 pm

If I trace any land claim far enough back it involves taking the land by force from some prior owner, at least into the Stone Age; I’m not clear where this insight leads to.

17

GG 08.15.16 at 4:07 pm

@ChrisBertram: I figured as much, but I was hoping someone here would have a clever reply.

So where does that leave us? It seems that, in order to calim that someone has been (wronglyfully) dispossed of a thing, you first must demonstrate that they (rightfully) possesed it. Original occupation seems to run afoul of the Lockean proviso as well once everything has been occupied.

18

Yankee 08.15.16 at 4:12 pm

19

Yankee 08.15.16 at 4:14 pm

sorry about the link. o wel. “Recent DNA studies of anthropological remains have suggested that … “

20

Rich Puchalsky 08.15.16 at 4:24 pm

There has never been unoccupied land, throughout human recorded history. The primordial property scheme has to do with occupation (even a nomadic tribe needs a certain amount of land to support them and in a sense occupies it) and every property scheme starts with the dispossession of previous occupants.

The problem is with property itself. Needless to say that isn’t an answer that propertarians are going to like. The only way to have a system of property not based on force is to not have a system of property.

21

bruce wilder 08.15.16 at 4:37 pm

The only way to have a system of property not based on force is to not have a system of property.

It would seem so. Of course, you would still have force, so there’s that.

22

Jim Harrison 08.15.16 at 4:45 pm

Property rights are like political legitimacy in a monarchy. You are the rightful king if you can trace an unbroken lineage back to an original act of usurpation. I own the land if I can trace the deed through a series of grants or sales to an original act of appropriation. Property isn’t the same thing as possession since it has to be recognized by the others, but it is based on possession. As I understand it, the Romans, a bloody minded bunch, defined it this way.

23

alfredlordbleep 08.15.16 at 4:48 pm

At the risk of being another QuoteBoy here is a capsule. I have added square-bracketed elaboration. (We are lucky that (a few) first class essays are available on authors’ sites and not behind pay-walls)

All social costs generated by activities, argued [Ronald] Coase, are really the joint costs of conflicting desires in a world of scarce resources. Thus, Scarlett’s use of Tara as a meat-rendering plant is a social problem (that is, imposes costs on society) only because her neighbors don’t want to smell the effects of it and cannot costlessly avoid doing so. Details aside, a seditious message about rights lurks just below the surface . . . Coase’s morally neutral description of the social problem of (for example) smell pollution as a joint cost of Scarlett’s and her neighbors’ conflicting desires strips away the usual veneer of rights talk plastered over such problems, revealing two aspects usually obscured from view.

. . . The recognition that an individual’s exercise of her rights might well infringe another’s interests was hardly new with the [Legal] Realists or Coase. It was in the air long before then, and captured eloquently by Mill’s discussion in On Liberty, to which [Oliver Wendell] Holmes’s own analysis [1894] was undoubtedly indebted. But, in the context of property relations, the Realists sharpened that analysis by careful attention to the myriad legal disabilities imposed on third parties through the creation of any ownership right. More significantly here, they showed that such conflicts were not occasional but universal: All property rights necessarily infringe the liberties of others, as all entail reciprocal burdens on others, and in a world of scarcity, such burdens are often substantial.

Barbara H. Fried, Left-Libertarianism: A Review Essay, 32 Philosophy and Public Affairs 2004
http://law.stanford.edu/wp-content/uploads/sites/default/files/publication/257067/doc/slspublic/32(1)-Philos-&-PubAffairs-66-(2004).pdf

Of course, (right-) libertarians deny such a thing as the common good much as Tories like Margaret Thatcher deny the existence of society.

24

Alex K. 08.15.16 at 5:09 pm

Every positive theory of the social world, which purports to be all encompassing, is bound to come out bloodied from the encounter with the real world. This will be true to an even larger extend of normative theories — if you want to pick up corner or edge cases where the theory fails by its own standards, or by generally accepted standards, it would likely not be hard to do.

Take democracy:

How do democratic states legitimately acquire the right to rule a specific territory? Historically, the answer involves a lot of rape and plunder and relatively little mind paid to the “legitimately” part.

There are countless historical examples where democratic voting leads to vicious repression of minorities. Those opposed to such repression need a normative theory that gives individual rights to members of such minorities. But those rights need to be anti-democratic or at least resistant to democratic changes.
So assuming that they don’t approve of vicious repression of minorities, the cheerleaders for the state as the ultimate definer of rights are in the position of having to defend an a priori theory of rights, which does not involve the will of the state apparatus.

If the standard for judging such a theory is that it can not have any theoretical or historical failures, then it’s unlikely that any such theory will survive the acid bath of modern reason.

Which leads to the only possible conclusion, that the standards for judging normative theories of rights need to be more relaxed than the standards for judging mathematical proofs. We need to ask questions about the _likelihood_ of situations where the theory does not work well, and questions about the adaptability of the system embodying such a theory of rights to the likely range of real world situations.

Gotchas, theoretical or historical, will simply not do.

25

Peter Erwin 08.15.16 at 6:11 pm

Rich Puchalsky @ 20
There has never been unoccupied land, throughout human recorded history. The primordial property scheme has to do with occupation (even a nomadic tribe needs a certain amount of land to support them and in a sense occupies it) and every property scheme starts with the dispossession of previous occupants.

It might be interesting to look at some of the Pacific islands, which were in fact unoccupied until relatively recently (e.g., Hawaii and New Zealand, both first settled circa 1200 or 1300 AD). Iceland would be another interesting case of someplace settled de novo in historical times.

(Antarctica, of course, remained unoccupied until very recently, and has a curious sort of legal status of its own.)

26

David Heasman 08.15.16 at 6:39 pm

Also unoccupied until the 1300s was Madeira.

27

b9n10nt 08.15.16 at 7:27 pm

There are countless historical examples where democratic voting leads to vicious repression of minorities. Those opposed to such repression need a normative theory that gives individual rights to members of such minorities. But those rights need to be anti-democratic or at least resistant to democratic changes.

So the claim would be that civil rights activists and those who sympathized with the movement needed a rationally coherent theory of individual rights to bend law and custom to their desired ends? Every man and woman who marched, etc…needed to have a degree in law and philosophy to guide their actions and dictate their ends?

Do philosophical problems create oppression? Does intellectual coherence create social justice?

28

b9n10nt 08.15.16 at 7:28 pm

Oops, responding to Alex K. @ 24

29

stevenjohnson 08.15.16 at 7:49 pm

“There are countless historical examples where democratic voting leads to vicious repression of minorities.”

No, there are not.

There are not even countless historical examples of democracies. A surfeit of generosity might lead one to dismiss this little detail as a manifestation of hyperbole. But when arguing the inevitable opposition between democracy and rights, this nonsense destroys the plausibility of the argument. But it is convenient to corrupt discussion by omitting the case where democracy means a minority exercising its will against the majority…a case which happens far more often than the black hearted majority taking it into its empty collective head to lord over a convenient minority.

30

Rich Puchalsky 08.15.16 at 8:53 pm

BW: “It would seem so. Of course, you would still have force, so there’s that.”

People don’t talk about natural rights to force or systems of force in quite the same way. They acknowledge that they are there, but once you talk about force anyone remotely on the left or center understands that you want to set up a system where the use of force is minimized. Property, on the other hand, is something that people want to maximize.

31

bruce wilder 08.15.16 at 9:18 pm

Property, on the other hand, is something that people want to maximize.

Naturally.

32

roger gathmann 08.15.16 at 9:48 pm

16 – time matters, as you point out. The philosopher who is calmly tracing the violent expropriation of property back to paleolithic era will, very likely, call the cops if his own property, say the credit cards and the five hundred dollars in the wallet, are violently appropriated by a mugger on the street. If the muggers and the muggers children and their children after them are numerous enough and powerful enough, they might well decide that the philosopher – or, to expand our scope, the Mandan, or the Hottentot – have no real case. But to make it solid, the descendents of the mugger will use grave and resounding words: rights, universals, norms, and the like.
It is interesting to me that certain Indian nations seemed to believe they had obligations of hospitality towards shiftless europeans. The group at Jamestown and the group at Plymouth Rock would have simply died out if the Powhatans and the Patuxet hadn’t helped them out. The obligation of hospitality has certainly never had many strong defenders, in european thought, as the foundation of the right to hold property, though.

33

maidhc 08.15.16 at 10:14 pm

The lower Mississippi Valley at the time of first contact had many large agrarian settlements, that might even be termed cities. This is called the Mississippian culture These people were wiped out by European diseases, so the only contemporary description of them comes from the de Soto expedition. This left large areas totally depopulated.

Later conflicts arose because both Native Americans and whites wanted to occupy this empty land.

34

Faustusnotes 08.15.16 at 10:35 pm

Chris at 14, indigenous claims to property don’t do well under Locke because he was a racist; as I and others point out, they were working the land and improving it so met the conditions of ownership at the time, he just happened to think that they shouldn’t be. The idea that they weren’t working the land and improving it is a later addition to the canon of land expropriation, and it’s important I discussing the history of dispossession of indigenous peoples to not fall for this revisionist line that their white destroyers simply didn’t understand their models of land ownership. They understood perfectly well and recognized them for what they were – then they took them.

35

John Quiggin 08.15.16 at 10:55 pm

Apologies to several commenters above for the historical sloppiness. I’ll edit the Jacobin article to be a bit more precise. My proposed text:

“By the 1820s, the new nation was already pressing against the boundaries of Jefferson’s expansion. Settlers from the US began arriving in the (then) Mexican province of Texas, reaching such numbers that the Mexican government banned further immigration in 1830. In 1834, barely 30 years after the Louisiania Purchase, the Texan revolution began, leading to the annexation of Texas by the US in 1845. By the time of the Compromise of 1850 the nation ran “from sea to shining sea.”

36

Alex K. 08.16.16 at 12:06 am

“So the claim would be that civil rights activists and those who sympathized with the movement needed a rationally coherent theory of individual rights to bend law and custom to their desired ends?”

The claim is that people who theorize about those things don’t get to appeal to “Democracy!” as the solution, or the alternative, to the theoretical problem of deducing rights. The abuse of minorities by the majorities is a common historical occurrence. A principled opposition to such atrocities can not be based on the right of majorities to impose laws, it must be based on rights.

Apparently, in many parts of the political universe, the entire spectrum of possible political outcomes of democracy is reduced to whatever could happen in the USA, from circa mid 20th century until now, where there might be states willing to democratically abuse minorities, but where on the federal level, the population is generally against such abuse. In such a world of limited political imagination, even current events –Turkey’s government bombing Kurdish neighborhoods, Coptic Christian minorities regularly degraded or worse — get filtered out of the mind, in favor of more comfortable tales about the possibilities lurking in democracy.

37

b9n10nt 08.16.16 at 1:12 am

Alex K. @ 36

I’m skeptical that there’s this movement among political theorists to write papers about rights that just say “Democracy!”. Are you criticizing Amartya Sen, for instance, for being all smoke and mirrors about rights, freedom and ideal conceptions of either, and really just telling us that majority rule is where it’s at? If not, who are you referring to?

On the other hand, where minority groups are given/have won expanded freedoms, I’m skeptical that it has occurred because political theorists -somewhere- have worked out a coherent system of thought.

If I’m correct…social activists and perhaps their elite enablers are doing their thing without erroneously claiming “Theory!” whereas political theorists are doing their thing without erroneously claiming “Democracy!”, so there’s no actual problem that you’re pointing at.

Am I wrong?

38

J-D 08.16.16 at 1:32 am

Alex K. 08.16.16 at 12:06 am

…The abuse of minorities by the majorities is a common historical occurrence. A principled opposition to such atrocities can not be based on the right of majorities to impose laws, it must be based on rights.

Must?
Why ‘must’?

39

Alex K. 08.16.16 at 3:21 am

“b9n10nt:”

You know better than I do why you brought social activists into the discussion. But since you did bring them in, yes, I do think that worked out moral systems, whether Christian or otherwise, have a lot to do with expanded freedoms. The ideas that get to be influential don’t necessarily correlate with some academic publishing score — but ideas do drive practical men.

My point was that any moral system which tries to deduce rights somewhat a priori will be hard to defend in all its particulars and across all situations — so I found John Q. critique of Lockean property rights facile, as none of his criticisms seem particularly fatal.

I also discussed why appeals to democracy are unlikely to work as an escape from having to defend some form of individual rights — I didn’t write anything about movements.

I hope that clarifies things.

40

stevenjohnson 08.16.16 at 3:36 am

We hope for clarification? The fear of the majority oppressing the minority invariably means fear of the rich being “oppressed” by the majority, largely by progressive taxation.

Historically, there are a number of nationalist movements that define their nation as a particular linguistic/ethnic/racial/religious group. But there are many exceptions. Even more to the point, it is not at all clear how this relates to “democracy.” Strangely enough, seeing national states as machinery for defending property seems to be more instructive with regards to such issues than demagogy implying the vile people scapegoat minorities because.

41

John Quiggin 08.16.16 at 4:52 am

As I concluded in my article

property rights, like legally enforceable rights in general, are social institutions that may or not be consistent with concepts of justice and human rights.

That applies to whatever property rights indigenous people may be able to secure under the relevant national and international law. Some of those rights may be continuations of pre-existing native title, and some may have some other origin, such as reparation for past wrongs.

Where does that leave the typical case where indigenous people are pushed off the land on which they have lived for generations, and consigned to reservations or shantytowns? Clearly their rights have been violated, but this is, in my view, just as true of those who had no recognised property rights in the indigenous culture as of the chiefs and “big men” who had lots of property. Those now-vanished property rights inevitably rested on a prior expropriation (probably with a justification supplied by an indigenous version of Locke). Their standing existed only as part of the customary/legal system which supported and enforced them.

The fundamental right that matter in this context is the right to sustain yourself and to maintain your culture and family. That’s what’s almost invariably violated, even in the case where the process is notionally consistent with propertarian dogma, as when your chief sells the land from under you for a few dollars worth of trade goods (a quick Google on Manhattan reveals, unsurprisingly, that the true facts of such transactions are hard to verify)

42

John Quiggin 08.16.16 at 4:53 am

Chris @5 I was thinking about a further post on Nozick and Rothbard, and now I will definitely do it, when I next get some free time.

43

Moz of Yarramulla 08.16.16 at 5:04 am

Once we dismiss Locke, under what system of property rights can the earliest indigenous people s (anywhere, not just America) be said to “own” their land?

Lack of dissent, usually. People rock up somewhere, fight for what they want, if they win they settle in. As that great Roman property rights theorist put it “veni, vidi, vici” (amusingly, Australia also used Latin to describe the same process in different words “terra australias incognito”).

There are few examples of peaceful co-settlement outside of extremely harsh environments. I say few, because while I know of none I am fairly iggerunt. What I know of is Maori in Aotearoa, who arrived and very quickly set up a “system” involving vigorous diplomacy, raiding and warfare. They came from Polynesia, where that pattern has also been used for a while.

44

b9n10nt 08.16.16 at 5:05 am

I brought social activists in because, @ 24 you wrote that “…those opposed to such repression [of minorities from majorities] need a normative theory…”

Well, do they? If you are referring to actual socially-situated, historical, totally-not-hypothetical oppression, and if the “those” you refer to are actual people involved in opposing this repression, then I think they answer is “No, they do not need such a theory”. I’m sure if you ask them for one, they’ll get one for you!

But, if you’re not going to write about movements, then I think you’re talking about political philosophers. So, which political philosopher is going on about majority rule as a guanator of rights, minority or otherwise? And if you’re not talking about movements, and not talking about political philosophers….who/what are you critiquing?

My point was that any moral system which tries to deduce rights somewhat a priori will be hard to defend in all its particulars and across all situations — so I found John Q. critique of Lockean property rights facile, as none of his criticisms seem particularly fatal.

It didn’t seem that Quiggin was concerned with particulars. Rather, he is summoning virtually the entirety of recorded history contra Locke and pointing out that the one particular that should have met Locke’s criteria for establishing private property through non-coercive acquisition and labor, Euro-American settlers following the Loisiana Purchase, failed to perform according to his theory. That’s the opposite of a critique of particulars.

45

Moz of Yarramulla 08.16.16 at 5:19 am

Also, there’s solid evidence for agricultural cropping and structural fish “traps” in Australia meaning that the whole “terror australia incognisant” stuff was also nonsense from a Lockean perspective. The fact that in low-fertility regions of the country there’s not much evidence for it is no more reason to discount aboriginal occupation than it is today to deny white occupation/ownership of the same areas (1).

I have also read that North American orcharding rather than cropping caused perceptual problems, because Europeans couldn’t understand that mixed-species orchards were a thing, and thus regarded them as “natural forest”. Much as Aboriginal Australians often regarded unsupervised livestock as free for the taking, to the incomprehension and distress of the invaders. The question of “what caused the war” in Australia is clouded by a popular refusal to accept that wars even happened, let alone that they were widespread.

(1) much of remote Australia is leasehold rather than freehold, often with overlapping pastoral and mining leases.

46

Moz of Yarramulla 08.16.16 at 5:33 am

Steven@29

it is convenient to corrupt discussion by omitting the case where democracy means a minority exercising its will against the majority…a case which happens far more often than the black hearted majority taking it into its empty collective head to lord over a convenient minority.

I’m not disagreeing with the existence of the problem, just the relative frequency. Ignoring the “how common are democracies”, and the implied “are they real democracies”, it’s extremely rare for a democracy to protect the rights of minorities in general, but I suspect universal that they protect the rights of some minorities. The maths comes down to “does simultaneously denying the rights of multiple minorities, at the same time as denying the rights of the one majority, count as one each or as X minority vs one or two majorities”. There are a lot more minorities than majorities (eg, women and non-whites in the USA right now are both majorities, but … well, genderqueers, Native Americans and felons to name but three obvious minorities).

I agree that the common case of the 1% using democracy to protect themselves against the majority is common – it was the explicit rationale for the US adopting “representative democracy” rather than another form, for example. I suspect Prof Q would point at the legal enforcement of property rights is another example of democracy at best failing to fix the violation of minorities’ rights (and majority rights, in different ways).

But examples of the majority being nasty are at least as common. Whether that’s voting to violate Godwin’s Law in Australia last month (90% voted for slapping the nasty others in concentration camps!), or the historically common persecution of out-groups like indigenous people, sexual minorities, religious minorities or what have you, the question is more “were they murdered, or just forced to hide” than “were they persecuted or protected”.

47

John Quiggin 08.16.16 at 7:11 am

Faustusnotes @4. I addressed the issue of the “hunter-gatherer” claim about indigenous Americans in my second piece in the series, where I wrote

But when used as a justification for expropriating Native Americans, on the (factually incorrect) basis that they were mere hunter-gatherers (emphasis added)

I didn’t spend a lot of time in this point because I assumed that no one would challenge it, and because Locke’s argument would be just as wrong even if this supposed justification held universally. But maybe I should have spelt it out bit more.

48

faustusnotes 08.16.16 at 7:17 am

Fair enough John. You just had an aside in this one somewhere where you implied that native Americans weren’t mixing soil and toil, which seems to imply the factual correctness of the idea that they weren’t “using the land.” Ultimately it doesn’t matter, as we’ve all observed, because they would have been robbed of that land even if they’d been able to present a deed of sale from God, and invoices going back to the year dot, because the white invaders wanted that land.

49

Chris Bertram 08.16.16 at 10:43 am

@faustusnotes sure, you can argue that many indigenous peoples did in fact meet Locke’s criterion and so that he was wrong about the facts or that he knew the facts and was dishonest about them. But that still leaves open the question of whether, once we’ve made the necessary adjustments to the factual account, we have a normative principle that accords protection to all the people and peoples who ought to be protected. My suggestion is merely that an occupancy or use principle tracks that ought-to-be-protectedness better than a Lockean improving-labour principle does. And I was intending this as a comparative claim only — this principle tracks our intuitive judgements in particular cases better than that one — rather than as an independent argument for an occupancy or use principle.

50

Faustusnotes 08.16.16 at 10:48 am

I agree with that Chris. But maybe the real lesson from the experience of the indigenous people is that all property is theft, and most of the cultural norms that decide property rights come down to who is on the side of the person with the biggest guns. Not a lesson libertarians like, obviously.

51

Chris Bertram 08.16.16 at 12:00 pm

Altogether too Thrasymachean a conclusion to draw imo

52

GG 08.16.16 at 12:19 pm

Given the above, then, it seems that we need to be more precise in naming the evil. If all property rights are ultimately bullshit, normatively speaking, the the crime isn’t that indigenous peoples had “their” lands taken. Rather, per John Q., its that their families and culture were forceably interfered with.

53

faustusnotes 08.16.16 at 12:28 pm

Well there’s the thing, right there. Because all property rights obviously aren’t bullshit. I’ve got a set of dice that I received as a present (with the original D&D red box) when I was just a waif of a lad, and I don’t use them any more because they’re ugly and barely legible, but you can rot in hell if you are thinking of just walking off with them so you can play a game. They’re mine. I also have a blog whose posts are long dead in many cases but when I discovered a bunch of kids from some random US uni were reading my long dead posts about a book in connection with their assignment I was quick to contact the teacher of that class to warn her – no one is stealing my long dead posts thank you very much. And I think everyone with any kind of sense at all would agree that those things are my property and screw anyone who tries to take them. But under what normative grounds? And more importantly, everyone knows that whatever normative model you do or don’t have for property, those dice are mine and mine alone.

The same problem applies to indigenous peoples’ land rights. Even where they were genuinely nomadic – not misrepresented as such by liars after the fact – everyone who rocked up on those shores with a gun and a will to power knew full well that they were stealing land, and even though we don’t have a clear idea of any antecedents for how to define that land right now, we know it existed and we know the people who stole it knew it existed. That’s why settler societies like Australia and America have such a deep shame about the crimes they committed, and such a sudden, vicious and aggrieved response to being reminded of it. It’s not because we genuinely didn’t realize this plot of land belonged to someone and oh oops! we just went and built a farm on it, sorry about that old chap. It’s because someone told us to stay well away but we noticed they didn’t have any power to stop us, so we took what we knew wasn’t ours.

54

stevenjohnson 08.16.16 at 12:53 pm

Moz of Yarramulla @46 “it’s extremely rare for a democracy to protect the rights of minorities in general, but I suspect universal that they protect the rights of some minorities.”

My post was directed against Alex K’s, as I thought it was outrageous even by CT commentariat standards. The notion of “minority rights” is usually very confused. Are they group rights, or are they individual rights? As in the example, are African-Americans as a group oppressed because the African-American community cannot veto the welfare budget? If that seems far fetched, remember the many recent assaults on Clinton because her husband and others “reformed’ welfare in the Nineties. Apparently welfare is an African-American group right! (This thinking seems kind of reactionary to me, just more right wing criticism of Clinton pretending to be left.)

Another consistent confusion in the notion of minority rights has to do with the real existence of the minorities. Women notoriously are often the majority, not the minority. But in what sense do they have a group identity that merits group rights? My experience is that the feminism of women committed to the capitalist system has very little in common with the feminism of women committed to human equality. As for sexual minorities, it is a question whether the official visions of proper sexual behavior describe a majority at all. A legal system supporting polygyny favors a minority by definition. Marriage laws across most cultures prescribe fidelity. Are adulterers a persecuted minority? As for religious groups, in a secular state all religious sects are in effect minorities, something Christians in the US are acutely aware of. In other states, where the nation is defined as a particular religion, the situation of course is entirely different.

But what Alex K was talking about (and your Godwin’s Law example seems to do as well) is, basically, a mob of the “majority” whipped up by demagogues inflicting oppressions large and small on “minorities.” For that, the only real example is laws oppressing the rich. Chavez in Venezuela redistributes some income (not property!) and Venezuela is promptly labeled a dictatorship. Or in the classic CT mold, too unseemly to really even notice much. Given that so many of the identifiable oppressions have old historical roots in non-democratic societies and governments, in particular it seems quite obtuse to insist on the role of the mob in the oppression of the minority rule. I’m not much on Australian history, but to me it seems very strange indeed to label Botany Bay democracy in action.

The OP is about how Locke’s notions of the justification of property don’t hold water. He is entirely correct on this point. The only real debate is how relevant John Locke’s opinions on this matter are today. I am inclined myself to think property, an incarnation of the true God, Mammon, possesses the numinous, rendering rational justification unnecessary. See libertarian philosophy and modern economics.

55

Sebastian H 08.16.16 at 3:17 pm

This whole discussion raises my disquiet with how academic philosophy seems to play out in popular discussions. Various sides seem to want to over universalize. Ideas about property seem deeply rooted and pop up everywhere. The property impulse at least seems universal, while the exact form of its expressions is not. This gets turned into statements like “property is a social concept” or “property is the result of your labor” or “property attachments form as a result of occupation” and then argued as if exactly one of them can be true. Or people above who seem to argue that discrediting Locke’s vision means that ‘property’ is discredited and they can proceed with their myopic vision of how society would work if we could all just get past ‘property’.

Why can’t it ever be “Locke had a good insight about one of the important ways that we form strong attachments to things and places and will fight to keep them but like nearly all philosophers with a good insight they try to elevate it to THE ONLY IMPORTANT INSIGHT and they were wrong about that.”

So much of academic philosophy turns into fights over which one insight is the real important insight to which all other insights must bow. From an outsider perspective it looks silly.

56

Sebastian_H 08.16.16 at 3:28 pm

To be clear, not a criticism of the original post.

57

ccc 08.16.16 at 4:10 pm

GG #52 “If all property rights are ultimately bullshit, normatively speaking, the the crime isn’t that indigenous peoples had “their” lands taken. Rather, per John Q., its that their families and culture were forceably interfered with.”

Not all property rights!

Nozick et al try to provide a neo-lockean procedure that individuals can follow to get eternal property rights as side constraints i.e. a normative status that overrules consequentialist considerations. That libertarian justificatory project fails. But consequentialists and rawlsian contractualists can still derive a system of property as one among the many socially constructed institutions (including taxation, social insurance, redistribution, special protections for minority groups, …) specified as functional parts of a set that generates valuable outcomes.

58

b9n10nt 08.16.16 at 4:54 pm

Sebastian H:

I agree that there’s an implied “merely” to statements like “property is a social concept” when we should get used to seeing that social conditioning is fundamental to our identities, values, and goals. It’s like saying that serotonin is merely a chemical. True, but this doesn’t imply that it can be readily substituted or manipulated the way we can add sweetener to our coffee.

Nevertheless, you can’t it seems spend much time promoting redistributionist policies on consequentialist grounds whence comes an argument that you are proposing to violate some valid principle of natural property.

The contemporary political rhetoric of property rights, I would argue, is still grounded in too much mystification.

59

Alex K. 08.16.16 at 5:49 pm

“b9n10nt:”

You’re being tedious for no good reason. Please google “The Priority of Democracy to Philosophy” for a defense of the position that I’m criticizing, the nihilistic deferral to democracy on questions of rights.

I don’t find that focusing on the historical expropriation of indigenous people, based on dubious interpretations of what is legitimate initial acquisition of land, leads to a proper description, on balance, of the advantages of property rights.

Defining legitimate acquisition of land is something that probably does not have a fully satisfactory answer and this is something common to all political systems. Expropriating indigenous people on the basis of “land belongs to no one” does not seem like much of a moral advance over negotiating with them for the sale of the land.

60

alfredlordbleep 08.16.16 at 8:40 pm

Some left-libertarians have explicitly adapted Locke’s Proviso in various ways. Fried took this up among other things in the review I linked above. Because there doesn’t seem to be a self-contained quote in her review I gave her property rights capsule instead.

. . . More promising in a number of directions is J Mazor’s 2009 Harvard dissertation, A Liberal Theory of Natural Resource Property Rights (p.200, sect 5.2):

Rather than attempting to rehabilitate Locke, I am interested in developing and defending an independent Equal Division conception of the equal claims view. However,
a variety of obstacles stand in the way of this task. The first is the sheer complexity of
the real world. We live in a world which has a wide variety of natural resources and
continually experiences social, technological, and demographic change. Additionally,
our world is comprised of multiple political entities, and has a complex and morally
problematic history.

Most theorists who write on natural resource property rights, including those
whose theories were considered in Chapter Four, largely ignore most of these real-world
complexities. Of course, some initial abstraction from complexity is unavoidable. It is
hard to see how a theory of natural resource property rights can be developed without
initially abstracting from at least some complexities. The problem is that often these
other theorists do not make explicit their simplifying assumptions. More importantly,
after developing their basic theory, these thinkers rarely consider how their theories could
be adjusted to accommodate the real world complexities. If they do consider these
complexities, it is often only in a very cursory and unsatisfactory way. While I also will
begin developing my conception of the equal claims view in a highly simplified world, I intend to make my simplifying assumptions explicit and to relax each of these assumptions in later chapters.

Unfortunately I don’t have a link handy for this prize-winning work. BTW he deals with recent work on the Lockean Proviso at length earlier.

61

alfredlordbleep 08.16.16 at 8:45 pm

Pardon. Now I note the bold-face was mine. And the spacing screwup—mine also. Would be nice if these things could be edited (as hundreds doubtlessly have noted already)

62

John Quiggin 08.17.16 at 2:35 am

Sebastian H @55 This is an important point, which I looked at here. My view is that legally enforced property entitlements are a purely social creation which sometimes coincide with notions of rightful possession and sometimes directly contradict them.

The crucial issue for my argument is that you can’t graft a notion of inviolable rights, based on intuitions about (for example) self-ownership, onto a property entitlement derived from a legal system where such entitlements are invariably constrained in all sorts of ways, subject to eminent domain and so on.

63

b9n10nt 08.17.16 at 3:48 am

Alex K @59

Yeah, well one man’s tedium….

Thx for the citing the Rorty essay. Skimming it, not seeing “nihilism”.

Anyway, my preoccupation here, tedious though it may seem, is the apparent switching back and forth between descriptions of rigorous, philosophical thinking and description of historical, social events. Thus in your last graph @59 you write “Expropriating people on the basis of ‘land belongs to no one’ does not seem much of a moral advance…”

Don’t we need political philosophy to (attempt to) take as its subject historical, social reality? And if so, does expropriation ever, in fact, occur because of a philosophical system of thought?

You’ve written that “ideas guide practical men”. I disagree. I start with the assumption that the justifications for action follow rather than precede the decision to act.

In any case, my interests here distract from many things you have written that I would agree with. No system of property rights will survive the acid bath of reality. And that there is something innate or natural about possessiveness/property, but that codifying that in law or principle is a fraught task. ( I think you would agree with that point, expressed by many others in this thread and Quiggin’s OP).

64

Bill Murray 08.18.16 at 4:46 am

As in the example, are African-Americans as a group oppressed because the African-American community cannot veto the welfare budget? If that seems far fetched, remember the many recent assaults on Clinton because her husband and others “reformed’ welfare in the Nineties. Apparently welfare is an African-American group right! (This thinking seems kind of reactionary to me, just more right wing criticism of Clinton pretending to be left.)

Isn’t the criticism rooted in the effect on individuals who, because of the structure of US society, are more likely to be African-American or really any minority. So in fact it seems far-fetched because it is a complete misunderstanding of the argument

65

roger gathmann 08.18.16 at 7:48 pm

I think that the Lockian theme would be enriched by a little material history. For instance, land property, which has been discussed as a sort of iconic private property, is the kind of thing that has to be measured, marked off, and its extent and boundaries agreed to. The Europeans that came to the New World in the 16th and 17th century came from varied experiences of this. Holland and England had maps and institutions that tried to fix boundaries – in Italy, France, Spain, and particularly in Eastern Europe, this was much more fragile and compromised. In Russia, for instance, in the seventeenth century there would be an official walk around the property, since the maps were fanciful, and claims and counterclaims were difficult to judge. It isn’t just the Amerindians that relied on notions of territory that didn’t reduce to property lines. In the 90s, when I worked a while at a land title company in New Mexico, the plats were fantastic. Some of the claims went back to the times of the Spanish monarchy, and often boundaries depended on trees, creek beds, or natural features that had changed in the 200, 300 years that the property was “exchanged”. This is to say nothing of the exchangers: the differences in the law between men and women, between slave or serf and noble, between Catholic and Protestant, and so on. There had to be a whole complex of things – including a monetarized economy – for Lockian property (in terms of land) to be realized in any more than a very small part of the world.

66

liberal 08.18.16 at 8:42 pm

A long comment thread on Locke and property without mention of Henry George? LOL. And AFAICT Quiggin didn’t mention good old HG in his Jacobin series, either.

67

TM 08.19.16 at 7:44 am

“the vastness of the land, compared with the modest requirements of the ideal Jeffersonian farm family seemed to support Jefferson’s prediction that the new land would be enough to last a thousand generations.”

Jefferson must have been very bad at Math if he believed that.

68

TM 08.19.16 at 7:58 am

CB: “the claims of indigenous people don’t do well under Locke, because according to him, many such peoples fail to have the right relationship to the land: they’re not improving it, working on it etc.”

As has been pointed out, this Lockean view is wrong, at least in most cases. But I’m wondering about a different point: would a Lockean agree that a (white) property holder who doesn’t “improve” the land, who in fact is running the property down and wasting its wealth, would that owner forfeit his/her property rights? Because that would apply to many modern day farmers not to mention owners of mineral resources, forests, of course also businesses. What criteria would a Lockean use to identify whether a property owner makes productive use of and “improves” the property, and who gets to decide?

69

John Quiggin 08.19.16 at 10:00 am

@68 As I pointed out in an earlier instalment, Locke’s position implies support for compulsory acquisition under eminent domain, as in causes celebre like Kelo v London. improver makes everyone better off.

Locke is, in fact, offering a theory of expropriation

http://johnquiggin.com/2015/04/20/lockes-theory-of-just-expropriation-crosspost-from-crooked-timber/

70

reason 08.19.16 at 12:20 pm

I’m just wondering if there is good pun with Lochte to be used here.

71

Sebastian H 08.19.16 at 6:28 pm

“would a Lockean agree that a (white) property holder who doesn’t “improve” the land, who in fact is running the property down and wasting its wealth, would that owner forfeit his/her property rights?”

Yes, and in fact there used to be a strong concept of acquisition by adverse possession which supported the idea. Adverse possession has been legislated away or severely limited in most jurisdictions but it definitely used to be a large feature of property rights.

[Adverse possession in broad terms meant that if you openly possessed and used land, it became yours after a period of time. The concept was that if the owner couldn’t be bothered to get rid of you, or was so distant as to fail to notice you were there, they were wasting their ownership].

72

Yama 08.19.16 at 6:36 pm

https://en.wikipedia.org/wiki/The_Baron_of_Arizona

For old movie / Vincent Price fans out there.

73

ZM 08.20.16 at 1:44 pm

Sebastian H,

We still have adverse possession where I live. Once there was a triangular block of land in the centre of the little town I grew up in that was partially hedged with damson plum trees on the two public facing sides. These were the only good hedges of damson plums in the town, and perfect for jam making and the plums were abundant more than any one person could use. Then after about 15 years of living next door the owners of the neighbouring property claimed adverse possession and cut down the damson plum trees. These tree hedges were the best thing about the whole property apart from the unique triangle shape.

John Quiggin,

“Locke’s position implies support for compulsory acquisition under eminent domain, as in causes celebre like Kelo v London. improver makes everyone better off.
Locke is, in fact, offering a theory of expropriation”

I read about the Kelo case after you blogged about it. It is using the takings clause in the USA Constitution which uses the Public Use test. Use is the medieval word for Trust, and the Medieval Use is the predecessor of the law of Trusts in England.

The Public Trust Doctrine is the law that the climate change group Our Children’s Trust is using in court cases in America, against State and Federal governments in relation to inaction on climate change.

The Public Trust Doctrine is also received law in Australia, but it has only been used about 4 times in Australian courts. In a coal mining case in the North Shore of Sydney where the residents won the right to stop the harbour coal mine and associated onshore infrastructure going ahead, in a case of the government selling off public parkland in Albert Park in Melbourne where the court found the Public Trust was relevant but said only the Attorney General could bring the case to court and he refused to and then it caused a scandal for some time, and two cases about parkland where in one the court found against the plaintiffs and the public trust doctrine but the Judge gave no reasons, and one where the court found in favour of the plaintiffs and the Public Trust Doctrine and the judge provided his reasoning.

The law itself goes back to Roman Law and is found in the Institutes of Justinian but probably predates them.

The law wasn’t taken in to English law by John Locke but predated him. It was taken into English law at the early stages of the development of modern English jurisprudence around the 13th C with Lord Brakton mentioning it in a book as part of English law and a 1299 court case using it.

So John Locke isn’t responsible for the Public Use or Public Trust law used in the Kelo case. It is quite separate from him, predates him, and even if he appears to use it or be influenced by it in part of his work he didn’t originate it.

From the Jacobin article:

“As this sorry history shows, Locke’s proviso is fundamentally at variance with the core doctrine of classical and neoclassical economics, that human needs and desires are unlimited while resources are invariably scarce. The idea of founding a defense of capitalism on a Lockean doctrine of just acquisition of property is inherently contradictory, pitting the role of the market in managing scarcity against a hypothetical origin story in which the absence of scarcity is critical.”

I think this is why you have something like the Public Trust law – to ensure common resources are governed for the good of the whole public, and this is why the takings clause allows the USA government to confiscate property to meet the public use test so long as compensation is paid.

Whether you think the specifics of the Kelo case actually meet the public use test is a different thing I suppose. The specifics of the case are based on the Urban Development Plan of the area which stresses economic development.

But the provision in the constitution used in the Kelo case is a general law dating back a long way and predating John Locke.

And how it expands the Public Trust (Use) in the USA from the Public Trust in UK common law and Australian received law etc, is actually along the lines you are arguing for in terms of seeing private property as interdependent with public property and the public good.

I think you should maybe revise your objections to the Kelo case to be about the specifics of that case, rather than the law which allows the appropriation of private property by the government for the public good.

The development plan used in the case stressed economic development over social and environmental factors I think, which many people probably thought should be factored in. Also I don’t know if the owners were given the option of trying to meet the Public Use test over time. Plus it is a reasonably rare use of the Public Use test in that the government confiscated the property to give to another private owner, in keeping with the urban development plan, rather than to use for directly public purposes.

Comments on this entry are closed.