LOCKE CONTINUES his systematic consideration and revision of the original natural law limitations on natural liberty in the Two Treatises with his famous discussion of property. This discussion stands in an obviously important place in Locke’s thinking, for his argument has been moving to the claim that “every man has a property in his own person”—a claim that not merely contradicts the ostensible initial grounding of the law of nature in God’s ownership of all persons, but one that reverberates with one of the most striking features of Locke’s doctrine of rights, his tendency to cast the whole in the language of property. “Lives, liberties and estates . . . I call by the general name property” (II 123; cf. II 135, 137, 173). All the rights, or all the objects of our rights, are “property.” Government is for the sake of securing property, so understood (II 139). Here, in the discussion of property, we might expect Locke to clarify and defend his notions of self-ownership and rights as property. Perhaps this is the reason Locke chose to single out his discussion of property for special commendation in a letter written while Two Treatises was still anonymous: “Property, I have found nowhere more clearly explained than in a book intitled, Two Treatises of Government.”1
Clear as Locke pronounced the explanation of property to be, hardly anything in his political philosophy has produced more controversy in interpretation. One reason for the controversy is the failure of most readers to keep clearly enough in mind the place of the chapter on property within the structure of Locke’s argument. The guiding thread through the first seven chapters of the Second Treatise is the list of five relations presented almost at the very opening of the book. Locke means to show how the political relation differs from the other four, or how “the power of a magistrate over a subject” differs from all other sorts of power (II 2). The chapter immediately preceding the one on property explains the master-slave relation; the chapter following elucidates the power of parents over children. Later chapters outline the husband-wife and magistrate-subject relations. The chapter on property does not fit as obviously into the sequence because Locke does not make the “master-servant” relation explicitly thematic in it, as he does the other relations in the chapters devoted to them. Only a few times in the entire chapter does Locke mention a “servant” or “day worker” (II 28, 29, 41). One could thus easily overlook the centrality of the master-servant relation, yet grasping the chapter in terms of its location within Locke’s overall structure brings to the fore its ultimate destination: an explanation of how master-servant relations arise and what they are in contrast to the political relation.2
Both slaves and servants labor for others, but the latter sell their labor rather than having it seized forcibly (II 85). Since the slave relation is inherently asymmetrical and unstable, the master-servant relation promises to be a more successful arrangement for providing labor. No state of war inherently exists between master and servant.
The servant is “a freeman” who sells his “services” to another (II 85). But why should a man sell his labor power to another, especially given the original “perfect freedom” of the state of nature? The chapter on property is to answer that question, and how it does so becomes clear in its final section. With the introduction of money, land became entirely private, and none of it remained part of the original common. At the same time, money produces great inequalities in possession of land. Although Locke does not dwell on the point, the harsh fact emerges that one may legitimately own a great deal of land, far “more land than he himself can use the product of,” while others, legitimately, own nothing but their “persons” (see II 35). That situation explains the rise of the master-servant relation, and gives it its decisive character, for some must sell their labor to others in order to survive. In a word, the chapter on property begins with a world belonging in common to all, where one aspect of natural equality consists in “sharing all in one community of nature,” and moves to a situation in which nothing is common and some are excluded from any ownership of what was common, the whole discussion having the aim of showing the rightfulness of this course of development.3
As is typical of his procedure in Two Treatises, Locke does not begin by calling attention to his ultimate destination; rather, he announces his task as follows: “I shall endeavour to shew, how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners” (II 25). Locke chooses not to emphasize the end result of the process whereby some are dispossessed and thus relegated to the role of “day labourer,” but rather the conundrum of how the originally common could become private at all. As Laslett rightly emphasized, Locke has set his problem up in terms of his ongoing confrontation with Filmer, on the one hand, and Grotius, on the other.4 Grotius, like the Roman lawyers, had affirmed an original community of property transformed through compact to private possession. Filmer, in turn, had challenged Grotius’s concession of an original community of property: If the law of nature mandated community of property, how can it consist with the “providence of God almighty” for the natural law mandate to change? How can human beings have the power to introduce private ownership? Grotius, said Filmer, “doth thereby . . . make the law of nature changeable, which he saith God cannot do.” Filmer found the mechanism Grotius identified to effect this change in the natural law doubly problematical: Is it reasonable to surmise that all human beings came together to make such a compact? Even if they did, can one generation disinherit later generations from their share in the natural community of property?5
In his essay on property, then, Locke means to save the Grotian thesis, or something like the Grotian thesis, against the criticism of Filmer. He will do this without recourse to an “express compact” and thus avoid at least some of Filmer’s strictures against Grotius. Locke does not merely restate the Grotian doctrine with the minor modification of substituting tacit for express consent, however; in the first instance, he appeals to his transcendent natural law to develop a quite different account of the “original of property.”
Locke attempts to defend Grotian theses against Filmer, but it would be a mistake to conclude that Locke’s modifications in the Grotian property doctrine are determined solely by the effort to lift the Filmeran siege.6 Peter Laslett rightly called attention to the imprint of anti-Filmerism throughout both treatises, but not everything in Locke’s revisions of the natural law thinking prior to him—perhaps nothing of real importance—results from his efforts to shore it up against Filmer.
This is especially clear in the case of the Filmerian critique of property, for Pufendorf had already responded to a critique of Grotius almost identical to Filmer’s. Pufendorf both pointed to places where the critics seriously misunderstood Grotius and modified those Grotian theses that were genuinely vulnerable. He produced a philosophy of property only slightly different from Grotius’s that was proof against Filmer’s blasts. If Locke were only or chiefly concerned to fend off the Filmerian critique, he could stick with a doctrine much closer to Pufendorf’s modified Grotianism. However, he departs substantially from both Grotius and Pufendorf.
When Filmer challenged Grotius on the grounds that the Dutchman had derogated from the majesty and providence of God and changed the immutable natural law by allowing human convention to abrogate the initial community of right, he touched on probably the most characteristic feature of Grotius’s natural law doctrine. Just as Grotius, in his doctrine of political authority teaches that the natural law empowers human will and human convention to a surprising degree, so he does regarding property.7 According to Grotius, “the common and undivided possession by all men” of all things that prevailed at the beginning allowed “each man” to seize whatever he could, as he wished, for his own use, and “to consume whatever could be consumed.” This “universal use was then a standard of right, as [private] property is now”; no one could seize what another had already seized without committing an “injustice.”8
Nature’s original dispensation could have been maintained if human beings had continued to live very simply, that is, if they had been satisfied to take only what they needed. The simple life of cave-dwelling, nakedness, and nuts and berries did not suffice; as Glaucon put it in Plato’s Republic, human beings desire “relishes” as well as necessities. Grotius cites Cicero’s example of the theater as a model of the original common right: although the theater is common, a seat is properly said to be his who occupies it. The change disrupting this common right occurs when some people decide they need backrests, or built-in cushions, or shade from the sun. To “improve” their seats, they need to apply their industry to them and thus to have a steady relation to them beyond mere use when needed. The need for an abiding relation to things gave rise to the need for property, but not “by the act of one alone”; it is not sufficient for the would-be claimant merely to begin improving the seat unilaterally. Since the property relation implies an abstention by non-owners, and thus an abrogation of original common right, a compact of some sort is necessary to establish property. A compact allows each to know what another considers his or her own and thus to know what should be abstained from.9 In a now-familiar Grotian move, the compact grounds the obligation to abstain from what another possesses, and thus is essential to constituting property as such. Occupation of land does not itself give a right, but the tacit agreement that occupation is to be taken as signalling ownership does so.10 A better understanding of Grotius than Filmer showed would appreciate that Grotius does not endorse changing what he had indeed affirmed as an immutable natural law. The natural law decreeing social peace suited to rational beings remains the same; what changes is the application of it in different circumstances. As Pufendorf later said, the demarcation of mine and thine serves social peace by making clear what belongs to whom and thus reducing conflict.
Filmer, however, interprets Grotius differently, not only as allowing human will to change natural law, but as allowing it to contradict or reverse natural law. To the Reformation attitude of human obedience to an overwhelming divine will out of which Filmer’s thinking proceeds, this Grotian theory is altogether intolerable. “Grotius saith, that by the law of nature all things were at first common, and yet teacheth that after propriety was brought in, it was against the law of nature to use community.”11 Grotius thus “makes the law of nature contrary to itself,” first requiring common right, then requiring private right.
Although I know of no evidence that Pufendorf knew Filmer’s critique, nonetheless he responds in De Jure Naturae et Gentium to a position very like Sir Robert’s: Another critic of Grotius had insisted that whatever right in the things of the world human beings have, the first man, Adam, must have had directly from God, and had fully. If private property was not the initial mandate, then the later introduction of property must be condemned as a “greedy” deviation from right.12 The point of this objection, as of Filmer’s, was to challenge not the rightfulness of private property but the Grotian method of justifying it, and especially the Grotian beginning point in common right. Grotius’s natural law is problematic, that is, not because it allows property but because it threatens to destablize it by resting it on a merely human practice, introduced with no authority and contrary to the alleged original natural law ordination.
Pufendorf dismisses this objection because it rests on a confusion between positive and negative community. The critics take Grotius as establishing an original positive community, whereas he really only establishes a negative community.13 Things held in positive community “differ from things [privately] owned, only in that the latter belong to one person while the former belong to several in the same manner.” Negative community, on the other hand, holds things “to be common, according as they are considered before the interposition of any human act, as a result of which they are held to belong in a special way to this man rather than to that.”14 Positive community is thus a kind of joint ownership; negative community is non-ownership: things “are not yet assigned to a particular person, not that they cannot be assigned to a particular person.”15
Filmer understands Grotian community in the positive sense: natural law prescribes joint ownership and thus the devolution of the things of the world into the exclusive possession of individuals would indeed represent a reversal of the natural law.16 The original common right as a negative community in Pufendorf’s interpretation is not open to the same objection as positive community, however. It merely means that according to natural law, the world is originally unowned—that is, not assigned to particular persons, but ownable. Since the Grotian natural law mandates sociability and peace above all, the assigning of the world to particular persons, so far as that conduces to human peace and welfare, is permissable.17 “Some arrangements that are permitted, but not enjoined by natural law,” comments James Tully, “come to be backed by natural law once . . . introduced.”18
Pufendorf defends Grotius against his Filmer-like detractors, but he also modifies the Grotian doctrine on property in ways that prove relevant to Locke’s discussion. More strongly even than Grotius had done, Pufendorf emphasizes the role of compact in constituting property. Grotius had introduced compact at the second stage of the human relation to the things of the world. In the first stage of common right, human beings could seize whatever they needed, and Grotius does not suggest that this right of taking involved compact. Only at the next stage, in which a more or less permanent relation is developed with external things, required by the improvement of them through the arts, does Grotius expressly introduce compact. Pufendorf, in the guise of a gloss on Grotius, introduces a “tacit convention” in the first stage. “So long as the actual bodies of things were not yet assigned to certain individuals, there was a tacit convention that each man could appropriate for his own use, primarily of the fruits of things, what he wanted, and could consume what was consumable.”19 Pufendorf interprets Grotius in this somewhat questionable manner because he and Grotius agree that the initial appropriation of “the fruits of things” established a right, in respect of which it would be unjust to interfere with what another had seized. An “antecedent pact was required . . . to produce [this] moral effect.”20 Pufendorf distinguishes the kind of use human beings make of the things of the world from the use animals make of them precisely on the ground of this moral obligation. “Brute creatures use and consume things . . . although no dominion is recognized among them.” None of the animals “can claim a special right above others to anything, but every one takes for his own nourishment everything he first happens upon.” Animals, in effect, share in the same negative commons, but they lack the power to make what they seize property, “for the reason that there is no convention among animals which confers a special right over a thing to the one that first got it.” Pufendorf concludes, “It is clear that before any conventions . . . existed there was a community of all things.”21
Pufendorf concedes that a tacit pact suffices at first, but this must give way to express agreements, a claim that also goes beyond anything Grotius had said. “There was need of an external act of seizure, and for this to produce a moral effect, that is, an obligation on the part of others to refrain from a thing already seized by some one else, an antecedent pact was required and an express pact.”22
Locke is so far from accepting Pufendorf’s defense of Grotius against Filmer-like critique that he takes Pufendorf’s version of the rationale for property as the account he will avoid: he will make much less, rather than more, of convention or compact than Grotius had done, and thus move in exactly the opposite direction from his synthesizing contemporary. Locke’s difference from Pufendorf can be captured in a single phrase: not compact or consent, but labor, supplies “the beginning of property” (II 30). Before property, “the earth and all that is therein . . . belong to mankind in common” (II 26). Contrary to James Tully’s assertion that the negative commons “differentiates Pufendorf’s [and Grotius’s] theory from the theory of Locke,” Locke understands this commons as negative—ownerless, but capable of being owned.23 He illustrates his notion of the original commons with a homely example his contemporaries could understand from their own experience. “Amongst us the hare that any one is hunting, is thought his who pursues her during the chase. For being a beast that is still looked upon as common and no man’s private possession, whoever had imploy’d so much labour about any of that kind, as to find and pursue her, has thereby removed her from the state of nature, wherein she was common, and hath begun a property” (II 30; cf. the reference to the oceans as common in II 30 and to running water in II 29).
Locke differs from Pufendorf not on the character of the hypothetical point of origin, but on what gives title to property. “Will any one say he had no right to those acorns or apples he thus appropriated, because he had not the consent of all mankind to make them his?”24 Of course not, Locke says, because “if such a consent as that was necessary, man had starved” (II 28). Pufendorf’s theory of compact is at odds with the very point of property. Since Pufendorf posits a tacit convention, which does not require the actual consent of all mankind, Locke’s criticism should perhaps be stated differently: not so much that men would starve if Pufendorf is correct, but that Pufendorf’s approach does not sufficiently bring out why property is needed and what the real title to it is. Pufendorf had accentuated the need for consent because he was eager to account for the exclusive character of property rights, and compact seemed the only thing that could generate such an obligation. Locke on the other hand, asserts that “labour . . . excludes the common right of other men” (II 27).25 Contrary to Pufendorf, then, Locke believes he has another basis—labor—on which to generate the moral obligation to abstain from what another has come to possess. So far as Grotius agrees with Pufendorf on the role of compact in generating that obligation, Locke’s rejoinder applies to him as well. So far as Grotius affirms a property right independent of consent, as he seems to do in his first stage of property, Locke dissents for a reason that much parallels his stance toward Grotius in the Questions. Just as Grotius insists that obligation is essential to law but has no adequate account of the obligation-generating features of the natural law, he likewise holds obligation to be essential to property but again has no adequate account of the obligation-generating features of the original seizure of property. The closest he can come is to appeal to general duties toward others grounded in rational sociability as the overall mandate of the law of nature. This appeal, however, has, from Locke’s point of view, the difficulties presented in the Questions. Both in the Questions and in Two Treatises, Locke appeals to his own transcendent natural law against Grotius in order to supply an account of the right or obligation Grotius required but could not supply.
We must trace out the reasoning whereby Locke finds in labor the power to originate property as an exclusive right in order to appreciate the role Locke’s transcendent natural law plays in the critique of Grotius and Pufendorf. Locke’s argument is relatively straightforward: “Men . . . have a right to their preservation” (II 25). They must, “consequently,” also have a right “to make use of those things, that were necessary or useful to [their] being” (I 86). Human beings require things from the external world in order to survive. Repeatedly Locke calls attention to how deeply our “use of those things” must go. Our first need is food. “The fruit or venison which nourish” us must be “ours and so ours, i.e., a part of us” (II 26). “He that is nourished by the acorns or the apples he gathered . . . has certainly appropriated them to himself. No body can deny but the nourishment is his” (II 28). Locke takes appropriation—the taking of the external world—very literally. The most revealing process of labor is digestion. Locke thus makes clear why property necessarily includes the right to destroy what is owned.26
Labor is the human activity that allows the external things to become our own; it is that “without which the common is of no use” (II 28). By a kind of law of transitivity, therefore, Locke concludes that labor must originate property, for it is the sole means by which our right to life can be made effective. The appropriating power of labor is in effect equivalent to the executive power of the law of nature, a necessary inference from our fundamental right to life, because a necessary means to it. The title conferred by labor, then, “does not depend on the express consent of all the commoners” (II 28)—nor, for that matter, on the tacit consent of any of them.27 Locke seems to have found a way to move from the original (negative) commons to subsequent exclusive property without reliance on consent or compact, and thus to have accomplished what Grotius and Pufendorf failed to accomplish.28
Locke himself raises a difficulty with his argument, however. “It will perhaps be objected to this, that if gathering the acorns, or other fruits of the earth etc. makes a right to them, then any one may ingross as much as he will” (II 31). This objection might well be the response of Grotius or Pufendorf to Locke’s abandonment of agreement as a means of constituting property. The requirement of agreement embodies the social imperative animating Grotian natural law, because the need for agreement means that individuals lack the power to make property unilaterally, so to speak; the requirement of the consent of others guarantees that property will be (more or less) to the benefit of all. As Pufendorf put it, “Natural law clearly advised that men should by convention introduce the assignment of such things to individuals, according as it might be of advantage to human society.” It is to be kept to the “advantage of human society” by being done “in such a way that no one might claim them for himself alone,” or by himself alone.29 Locke, however, has given to individuals through their own labor the power to do this very thing—to “claim them for himself alone,” and by himself alone.
The objection Locke raises on behalf of the Grotians to his theory of the power of labor under the law of nature shows again just how parallel that power is to the executive power of the law of nature. Just as the latter was an innovation, so Locke, more quietly to be sure, suggests that this is an innovation, too—as indeed it was. Just as the executive power seemed “strange” compared to earlier natural law doctrines because it empowered individuals to do what individuals had been held morally incapable of doing, so the power of labor to originate property does the same. Finally, just as Locke derived the executive power from the natural law and along with it derived limitations on the power (soon to be overcome, of course), so he now discovers natural law limitations on the power of labor to appropriate the things of the world. “The same law of nature, that does by this means give us property, does also bound that property too” (II 31). Locke’s argument loses texture at this point, for he identifies the limitations by quoting a passage from the Bible, apparently a deviation from his task of giving us what the “law of reason” teaches about property (II 30). This is not to say that reason might not confirm what Locke takes from revelation, but in fact he makes little effort to show how his natural law limits derive from reason (see II 25). In particular, he does not here explicitly derive the natural law limitation from the God-as-owner thesis, just as he had not traced the right to life, which grounded the right to appropriate, back to that thesis.
Many scholars take for granted that the right to life Locke depends on is nothing other than his old right derivative from the duty to preserve or not harm self, presented early in his essay. Since Locke has undercut that argument in numerous ways by the time he comes to discuss property, this is not to be so readily taken for granted.30 Nonetheless, the most plausible construal of the discussion of the natural law limitations places the discussion back in the context of the God-as-owner thesis, and thus suggests that the whole argument about property to this point rests on or is meant to be congruent with the workmanship argument. In the first part of his discussion of property, Locke is presenting an alternative to both Filmer and Grotius in terms of his novel transcendent natural law.
In II 6, Locke had announced the no-harm principle in very general form. Because all human beings belong to God, no one has the liberty to harm another, or to “take away, or impair the life, or what tends to the preservation of the life . . . of another.” The argument in chapter 5 identifies the external things of the world as items “tending to the preservation of life.” To leave no external goods for others would surely qualify as the sort of indirect harm Locke pronounces to be contrary to the natural law. Unless one left “enough and as good in common for others,” or at least enough to support their preservation, one would be guilty of violating the no-harm principle, itself the chief command of the transcendent natural law (II 27).31
When he comes to supply an explicit formulation of the natural law limit on appropriation, however, he retreats from his earlier “enough and as good” language and lays down another formula for the limitation:
As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a property in. Whatever is beyond this, is more than his share and belongs to others. (II 31)
The “spoilage limitation” replaces both the Grotian compact requirement and Locke’s “enough and as good” limit, but it fulfills the same function: to set a limit for the sake of others on what any individual may appropriate. Although Locke does not explicitly relate the spoilage limitation to the general no-harm principle, it can be interpreted as a form thereof: one may not appropriate so much as to harm others gratuitously through having things spoil (i.e., lose all usefulness) while in one’s possession.
The spoilage limitation is surprisingly less stringent than other possible formulae embodying the general no-harm principle. For example, it is less stringent than the restatements of it one finds in some of the recent literature on Two Treatises: “God may have given the earth to everyone to enjoy, but He did not give them a natural right to property beyond the level of subsistence,” says Richard Ashcraft.32 This interpretation runs directly counter to Locke’s text, however: “As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a property in.” Ashcraft’s “subsistence rule” would perhaps be more consistent with the transcendent natural law as initially presented, but nonetheless Locke quite explicitly endorses the one and not the other.
The spoilage limitation might at first appear to be less stringent than the “enough and as good” rule, in part because it is less directly responsive to the needs or claims of others. These needs have no direct presence in the rule, as they do in the “enough and as good” proviso. One can indeed satisfy the spoilage limitation and yet violate the “enough and as good” rule—and vice versa, of course, but the latter possibility is much less significant than the first, because if enough and as good is left for others, allowing some of what one had appropriated to go to waste would not harm anyone. Yet Locke describes the conditions under which the spoilage rule holds in such a way that it would not be materially less stringent than the “enough and as good” rule. “Considering the plenty of natural provisions there was a long time in the world, and few spenders, and to how small a part of that provision the industry of one man could extend itself, and ingross it to the prejudice of other,” it follows that there was “little room for quarrels or contentions about property so established” (II 31). If the original condition was one of plenty, as Locke says it was, then the spoilage limitation is not in practice less stringent than the “enough and as good” rule. Under conditions of plenty, the spoilage limitation is an adequate embodiment of the original natural law mandate of no-harm; the assumption of plenty is required to make the spoilage limitation a valid—that is, a sufficient—limitation under the natural law.33 Of course, under those conditions, it is not necessary.
Locke’s assumption of natural plenty in the beginning not only allows the spoilage limititation to fit under the original natural law, but it coheres well with the workmanship argument in general. The creator-God who made us also provided for us. As Locke regularly says, quoting a passage from the New Testament, “God gave us all things richly to enjoy.”
The spoilage limitation, understood as a special case of the no-harm principle, and the postulate of natural plenty tie the whole argument on acquisition through labor to the God-as-creator-and-owner argument. That in turn allows us to understand how labor can create an exclusive right in things, that is, how the moral dimension of property, the obligation in others to abstain from what one has appropriated, arises under his labor theory. Property, via labor, is a means to preservation; to interfere with property is to do that which tends to harm others.34 Therefore, individuals possess a right of property in two senses—that of possessing a liberty to appropriate and that of possessing a claim such that others have a correlative duty to abstain.
Locke’s procedure may be confusing, so a few words of recapitulation are in order. Despite having already undermined two of the chief tenets of the transcendent natural law—the no-harm-to-others principle and the suicide prohibition—Locke opens his discussion of property by reverting to the transcendent natural law as grounded in the God-as-owner thesis and contained in the general no-harm principle. By the end of section 31, somewhat more than one-fourth into the chapter on property, Locke has presented the general outlines of an approach to appropriation through labor that stands as a critique and alternative to the Grotian approach he evoked in the very opening section of the chapter. As opposed to the Grotians, Locke cuts the origin of property loose from all connection to human agreement; he does this by generating a natural right to exclusive property from the altogether self-regarding right to preservation. The link to the law of nature is maintained, however, through Locke’s affirmation of limits to what any individual may rightfully appropriate from the natural common. That link invites us to understand the right to preservation, the ground for the power of labor to appropriate, as itself derivative from the duty to self-preservation under the original no-harm principle. Nonetheless, the attentive reader can hardly help but notice that Locke’s discussion of the executive power of the law of nature and of suicide have pointed to a very different grounding for his political philosophy—not the right of preservation as an implicate of divine ownership of humankind, but the right of preservation as a primary and underived right compatible with self-ownership. Locke’s procedure is confusing because he keeps reverting to what appears to be a preliminary position—the transcendent natural law—even though he has already moved beyond it. He has moved beyond it, and yet, just as in the Questions, he leaves it (more or less) standing as a presence in his finished philosophy, perhaps much for the same reasons as he did in the Questions.
The transcendent natural law remains always an important moment in the unfolding of Locke’s position. Although it is itself quite different from traditional natural law doctrines, it resembles them far more than his own natural rights theory does. His transcendent natural law not only resembles various traditional doctrines in one respect or another, but it allows him to maintain closer ties to biblical views than Grotius’s less theistic natural law was capable of doing. Indeed, to many readers who fail to penetrate Locke’s procedure, he appears to be mainly or solely a theologian, resting his entire political philosophy on revealed truths.35 Locke’s transcendent natural law gives him a secure footing from which to launch a critique of traditional natural law.
In the early part of the presentation of his doctrine of property, then, Locke supplies a purely (transcendent) natural law grounding for the right to appropriate and the duty to abstain. Grotius was at best too hazy on the former and—in Pufendorf’s gloss, at least—dependent on consent for the latter. Locke generates a different and arguably more focused account on both scores.
Both Grotius and Pufendorf conclude with a definition of property bearing a heavy conventional element, one implication of which is that their theory leaves property remarkably open to political control. Once again, the issue of property presents substantial parallels to the issue of the natural extent of political authority. According to Grotius, the original compact can create an absolutist regime as rightfully as any other form of rule. Locke contests that claim on two levels, one of which was within his teaching of a transcendent natural law via the executive power of the law of nature and the inherent limits on compact established by the natural law no-harm principle. Locke derives the same kind of protection for property that he asserted for rights of life and liberty. Human beings come to possess property prior to and independent of political society, which indeed comes into being for no other reason than to protect property in his extended sense, which of course includes property in the narrow sense. Locke concedes the right and power of the civil law to regulate property, but the natural origin of property and the conventional origin of civil government combine to produce a set of important constraints on law and on what the legal authorities may do vis-à-vis the property of their subjects. Perhaps the best known of these can stand as shorthand for all the rest: as the Americans later so eloquently put it, “No taxation without representation.” The Lockean state, of course, may tax, but the authorities can never have a “power to take to themselves the whole or any part of the subjects [sic] property, without their own consent” (II 139). This means, of course, that the sole legitimate taxing body is a representative assembly of some sort (II 140). This is, for Locke, a matter of universal constitutional law: no regime may rightly tax in any other manner, no matter what its previous practice was.
This Lockean insistence on a natural and universal constitutional requirement runs in the face of the general thrust of Grotius’s thought on the subject. According to the Dutchman, the powers of authorities depend on the variable positive constitutions, or original compacts. The location and extent of the tax power may vary from polity to polity, just as the general quantum of power held may vary from polity to polity.36
Grotius was serviceable to the Whigs because he gave legitimacy to the traditional polity, which in England provided that Parliament alone had power to raise taxes—at least as the Whigs interpreted the constitution. But both they and Grotius left that as a positive law mandate, which could, in the nature of things, just as well be otherwise. Locke’s transcendent natural law came out in the same place as the Whigs’, but in his case the principle of “no taxation without representation” is freed from all contingency, from all uncertainty resulting from the possibility that tomorrow some new document or court case will turn up to challenge the received version of the constitution. Serviceable as Grotius was to the Whigs, Locke was potentially far more so. The very features of his argument that were foreign to typical Whig historical argumentation were the same features that in the long run promised greater and more solid support for Whig positions. Locke’s critique and revision of the Grotian natural law of property was, in other words, an important part of the story of Locke’s rise to prominence as the Whig philosopher. The transcendent natural law, as the respectable vehicle for that critique, thus contributed more than its share to Locke’s ultimate triumph. There is good reason to doubt that the transcendent natural law stands in Locke’s mind as the true ground for the conclusions to which his political philosophy tended; but he managed to derive—or to appear to derive—those conclusions from that transcendent natural law while at the same time challenging it and subtly supplying indications of an alternative grounding for his conclusions.
Having established the right of property in the fruits of the earth on the basis of his transcendent natural law, Locke proceeds to consider property in “the earth itself as that which takes in and carries with it all the rest” (II 32). This analysis apparently merely extends the former analysis, for, Locke believes, “it is plain that property in that too is acquired as the former” (II 32). The necessity of that extension is apparent from the place of the discussion within the structure of the Second Treatise; the elucidation of the master-servant relation requires the demonstration of the process and legitimacy of the appropriation of the land. That being Locke’s task, there can hardly be a more serious misreading of his text than the claim by a recent Locke scholar that “the only form of property in land which he endorses in the Two Treatises is the English commons.”37 To the contrary, Locke concludes very explicitly that “we see how labour could make men distinct titles to several parcels of [land] for their private uses; wherein there could be no doubt of right, no room for quarrel” (II 39; cf. II 36).
Locke’s explanation of rights in land is, or appears to be, a simple and straightforward extension of his labor theory of acquisition of the fruits of the land. “As much land as a man tills, plants, improves, cultivates, and can use the product of, as much is his property” (II 32). Yet with the example before us of Grotius, who also discussed the origination of property in two stages roughly comparable to Locke’s, it is tempting to ask why human beings would or could extend their claims from the fruits to the land itself. If the world originally contained a “plenty of natural provisions,” why would human beings start to claim the earth itself? Why would they not remain content with taking from the plentiful commons the “fruits” they require or desire?
When he comes to answer that question, Locke indicates that the turn in the argument to property in land is no simple extension of his earlier discussion. Human beings appropriate land because they need somewhere to labor, and they labor because “the penury of [their] condition requires it” (II 32). The world is not plentiful, but scant, and labor is the means to make it less so. With these thoughts Locke has introduced a major revision of his previous presentation.38
He blunts the impression of innovation by reference to divine injunction. “God, when he gave the world in common to all mankind, commanded man also to labour” (II 32). If Locke intends by this to refer to the various biblical injunctions recorded in Genesis, then he presents here a highly truncated and thus highly questionable interpretation of the relevant texts, for God commanded to hard labor only after the Fall, not at the Creation, when he “gave the world in common to all mankind.” Locke thus collapses two phases of biblical history and entirely overlooks the key event, the Fall. The condition of penury that requires labor is, according to Locke, the condition of the beginning in itself, not a punishment or curse. In the very act of suggesting biblical support for his doctrine, he shows instead the severe difference between himself and the Old Testament authors.
In fact, Locke does the very same thing at the opening of the chapter on property. He assures us that “whether we consider natural reason, which tells us that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence: or revelation, which gives us an account of those grants God made of the world to Adam, and to Noah and his sons,” reason and revelation teach the same (II 25). Locke has stated the point in such a way, however, as to bring out the very opposite of the ostensible claim. Reason teaches that human beings “have a right to . . . meat and drink and such other things as nature affords for their subsistence,” but in the First Treatise Locke made it one of the chief points of his refutation of Filmer to insist that revelation teaches no such thing about human right. To Noah, long after the Creation and even long after the Fall, God said, “ ‘every moving thing that liveth . . . shall be meat for you,’ which was not allowed to Adam in his charter” (I 39). Human beings at the beginning—that is, Adam and all who lived before Noah—had no right “to have taken a kid or a lamb out of the flock to satisfie his hunger.” Lacking that right, Locke concludes the biblical Adam had at best “a very narrow and scanty property” (I 39). Locke’s reason and biblical revelation do not teach the same thing. Locke’s reason draws the full implication of the right of preservation; the Bible does not, but, much more like Locke’s transcendent natural law, presents God as the owner and master of nature who grants or reserves rights to humanity as he chooses.
Locke follows a complex tactic: he blurs the difference between reason and revelation by exaggerating parallels or even wrongly asserting identities; but at the same time, although somewhat more subtly, he draws the differences. The transcendent natural law itself manifests Locke’s blurring strategy, for he leaves the ready impression that God the creator and owner, who is the center of that theory, is the very God known through the Bible. “Deblurring”—bringing out the differences between reason and revelation—is part of the next phase of Locke’s argument, the undermining of the transcendent natural law. Reason’s conclusions do not coincide or even (for the most part) parallel the authentic teaching of the Bible. Locke’s transcendent natural law recapitulates the post-Christian drive within Western civilization to find common ground between its Greek and its Hebrew inheritances, a drive visible in the most important Christian theologies since Thomas Aquinas and especially present in such English thinkers as Richard Hooker, Nathaniel Culverwell, and Richard Cumberland, all of whom attempted to reconcile biblical and rational teachings within the context of a natural law theory. The Reformation surely disrupted this drive for harmony, but even radical Christian thinkers like John Milton made important gestures toward this reconciliation.
Locke officially aligns himself with this mainstream Christian theology, both in his transcendent natural law and in the formal doctrine of his Essay, that reason and revelation teach the same, except for matters such as immortality of the soul, where revelation goes beyond but does not contradict reason. However, if we pay attention to what Locke actually shows us, rather than what he says he is showing us, we see a rather different picture. Reason and revelation frequently conflict, and therefore a thoughtful person must somehow choose between them. Locke makes clear what he chooses in the face of conflict: “Reason is [our] only star and compass” (I 58; cf. II 57).39
Despite the differences between the teachings of reason and the commands of revelation, and despite Locke’s commitment to reason, he consistently and persistently blurs the differences. He blurs differences in order to conceal his innovativeness. He would leave the impression, to return to the example at hand, that the need to labor that grounds the new kind of property in the earth itself is a mere recognition of a divinely imposed duty. He makes no effort to trace this duty to the transcendent natural law, and it is difficult to see how he could do so. It does not follow from the fact that human beings are the “workmanship” and therefore the possession of God that “in the sweat of their brows they should eat bread.” Surely the Bible itself does not understand human creatureliness in this way. Were it not for the Fall, humanity could have survived on the spontaneous fruits of the garden. Labor arrives as a punishment for humanity’s disruption of the initial relation to God through disobedience.
If, on the other hand, Locke intends the command to labor to be understood as following from the Fall, and thus from explicit biblical doctrine, we have his interpretation of the Fall in the First Treatise to show that he does not understand the command to labor as a moral obligation of any sort. There, Locke had rendered the parallel punishment laid on Eve as “no more a law to oblige a woman to such a subjection [to her husband,] if the circumstances either of her condition or contract with her husband should except her from it, than there is that she should bring forth her children in sorrow and pain, if there could be found a remedy for it” (I 47). The curse on Eve, and by extension the “command” to Adam to labor, lays no obligations but only “foretells” how things will be. As there is a “foundation in nature” for woman’s subjection to man (greater male strength, female vulnerability through pregnancy and motherhood), so there is a foundation for Adam’s labor—the penury of the human situation in nature. By Locke’s method of interpretation, then, the “command” to Adam to labor is nothing other than “his condition,” which “required it of him.” In a word, there is no basis in Locke’s appeal to the “command” to labor for inferring that “everyone now has an obligation to labour,” or for concluding that “labour as an activity, and its end product, private property, have become a fulfillment of man’s natural law obligations, expressed as the will of God.”40
Human beings must labor, not to fulfill an obligation but to cope with the insufficiency of nature. The need for labor produces the need for property in land. Locke’s extension of the labor principle is more than a mere extension of his earlier argument, because it is premised on a reversal of the presumption that informed the earlier discussion of property in the fruits of the earth: not plenty but scarcity is the divine, or natural, endowment for human beings.41 Most of the remainder of chapter 5 is devoted by Locke to expounding on the theme of natural scarcity and, in that context, to substantially modifying his earlier treatment of labor.
Locke begins his thematic discussion of natural scarcity with the observation that, like the novel executive power of the law of nature, it may at first appear “strange . . . that the property of labour should be able to overbalance the community of land” (II 40). It is “stranger” that labor should be able to create property in land than in the consumable items Locke had first spoken of. The rationale he originally presented for labor does not directly hold for land. There is no need to absorb or digest it, as there is with food, the paradigmatic instance of the first sort of property. The case for land in property, especially if it has the consequence of dispossessing many (or most) human beings from their original right to appropriate the fruits of the natural common, is much harder to make than the case for appropriating acorns and venison. This case can be made only in terms of natural scarcity.
Locke’s most thematic statement on natural scarcity is his almost shocking claim that “nature and the earth furnished only the almost worthless materials, in themselves” (II 43). Neither God nor nature “has given us all things richly”: men have neither been given “all things,” nor were they given “richly.”42 Locke invites us to consider “the ordinary provisions of life”—bread, wine and cloth. These “are things of daily use,” yet none is produced by God or nature. “Unassisted nature” does not give us “all things” (e.g., bread, wine, and cloth), but instead provides acorns, water, and leaves, skins, or moss (II 42). The “commodities” nature does not provide are far the “more useful”; they far “exceed in value” the natural ones.
Neither does nature supply “richly.” In a series of almost comical restatements, Locke progressively diminishes nature’s contribution. Unimproved land produces, not one tenth not one one-hundredth finally not even one one-thousandth of what improved land does (II 40, 43; cf. II 37). When nature produces abundance, Locke reminds, even much of that is useless. “The greatest part of things really useful to the life of man, and such as the necessity of subsisting made the commoners of the world look after . . . are generally things of short duration; such as, if they are not consumed by use, will decay and perish of themselves” (II 46). In sum, nature provides few things, most unpalatable in themselves, ordinarily small in quantity or, when more profuse, rotting. Locke would first have us believe that humanity finds itself set in a world designed for it by a kindly father; later he shows it to be the sort of place a wicked stepmother might produce. Therefore, he observes, in the world as nature gave it, the inhabitants are “needy and wretched” (II 37).
Since nature is so niggardly, human labor must make up the deficiency. “Labor makes the far greatest part of the value of things, we enjoy in the world” (II 42). Unimproved or natural land scarcely has any more value than nature’s spontaneous products. “The ground which produces the materials, is scarce to be reckon’d in, as any, or at most, but a very small, part of [value,] so little that even amongst us, land that is left wholly to nature, that hath no improvement, pasturage, tillage, or planting, is called, as indeed it is, wast[e]; and we shall find the benefit of it little more than nothing” (II 42; cf. II 36).
Labor’s contribution goes beyond the relatively simple “ploughman’s pain,” but includes the entire complex of a division of labor, including “invention and the arts,” skills and effort, and the very social organization of labor itself (II 44). Perhaps thinking of the Lord’s Prayer—“give us this day our daily bread”—Locke traces out the amount and complexity of human labor required to “give us” a loaf of bread:
It’s not barely the ploughman’s pains, the reaper’s and thresher’s toil, and the baker’s sweat, is to be counted into the bread we eat; the labour of those who broke the oxen, who digged and wrought the iron and stones, who felled and framed the timber imployed about the plough, mill, oven, or any other utensils, which are a vast number, requisite to this corn, from its being seed to be sown to its being made bread, must all be charged on the account of labour, and received as an effect of that. (II 43)
Locke’s new treatment of labor replaces both the earlier view, associated with his transcendent natural law, of a provident Creator, and his earlier account of labor. Human beings require labor not merely to appropriate for their own use products already available but also to bring forth the products themselves. Labor, Locke now shows, contributes far more than he had first suggested. Nonetheless, the two presentations place the same feature at the center—labor’s transformative power. The original appropriative labor that takes digestion as its model is the power of living beings to appropriate the being of other beings and assimilate it into their very being itself. The second kind of labor, productive labor, is just as transformative. Things that were never in the world are produced from what was there. The natural endowment, far from being the support and ground of human life, becomes mere raw material, “almost worthless material” at that. It is tempting to view Locke’s theory of labor as a forerunner of Heidegger’s theory of technology as the human power to reveal all being as “standing reserve,” that is, raw material of an especially abstract and interchangeable sort.43 Heidegger’s theory of technology, indeed, appears to be a generalized and hostile version of Locke’s theory of labor. What Heidegger decries, Locke celebrates.
As the comparison to Heidegger suggests, there is a vision of being as a whole underlying Locke’s doctrine of labor. It is not the view often attributed to Locke—the great chain of being, a world composed of distinct and graded beings, ordered into a whole.44 Certainly Locke sometimes supplies evidence for such a conception, yet his theory of labor evokes an altogether different world, one with fluid boundaries, matter organized temporarily now this way, now that, and “being” an artifact of a particular temporary organization. In this world, the beings become . . . raw material. And standing above this world of flux is one being, somehow capable of ordering the rest around itself, engaging not merely in the constant transformations of animal labor—appropriation, digestion, growth, death, decay—but in a different sort of labor altogether: human labor, transformative, like animal labor, but self-consciously so, based on arts and knowledge, and consciously setting itself and its purposes (“conveniences”) as the end for the sake of which the rest of nature is to be transformed. It is no accident that the society that above all others has drunk from the Lockean cup has been more at home with the technological transformation of the world than any other.
If nature (except for humanity) is reduced to raw material, then the being of the beings (to borrow a phrase from Heidegger), cannot be defined in terms of their whatness, their essences, or species beings. Animals are potential food, metals potential tools or weapons, plants potential clothing. Such a view of the beings has already been prepared in Locke’s doctrine of natural species as presented in the Essay Concerning Human Understanding. The species are not, in fact, natural, but constructs of the human mind. Substance as such is a posit of the mind, the particular substances certainly unknowable.45 Behind his epistemology and his doctrine of labor stands precisely the same Lockean insight: the immensely creative power of human labor, understood either as the labor that constructs a world of use and convenience from almost worthless raw material or as the labor that constructs a world of things with qualities from sense data that do not and cannot vouch for this world. Tully is correct to notice a parallel between human creative labor power and divine workmanship, but Locke’s point is far more daring than Tully sees: because the divine workmanship lacks inherent character—is not a “world”—the human workmanship is possible.46
Given the wonders of labor as Locke delineates them, one puzzles over the Bible’s perception of it as a curse or a punishment. Despite his enthusiasm for it, Locke acknowledges that labor is “pain,” “toil,” “sweat” (II 34, 37, 42, 43). The world, not made for human use as the race would wish it to be, resists human efforts to refashion it. The world is body and the defining quality of body is solidity, that is, the “resistance which we find in body”—resistance, not Descartes’s purely intellectual extension. Locke’s world is a solid, resisting world that makes itself known through its ability to inflict pain. To the skeptic who doubts the existence of the external world or the adequacy of the senses’ testing of it, Locke replies, “He that sees a candle burning, and hath experienced the force of its flame, by putting his finger in it, will little doubt, that this is something existing.”47
The world, not made for us, can be remade to suit us better, but it requires expenditure of effortful labor. Most human beings would prefer to suffer less pain; not all are “industrious and rational” (II 34). Labor is required to overcome human neediness and wretchedness, but it involves its own wretchedness. Only if one has some assurance of reaping the rewards of one’s labor is one likely to expend it. The phenomenal productivity of labor can show itself only if there is something for it to work on and only if others are excluded from the fruits of its efforts. Exclusive property in the land or, more generally put, in the means of production is a necessary condition for productive, transforming labor, which is a necessary condition for comfortable preservation. Under conditions of natural scarcity and productive labor, the right to life implies the right to property, with labor as the intermediate term. “The conditions of human life, which requires labor and materials to work on, necessarily introduces private possessions” (II 35).
Locke thus accepts and goes beyond Grotius’s point that the application of labor requires a more stable and ongoing relation to the object of one’s labor. Labor requires and constitutes a link over time between a person and a part of the external world entirely different from that involved in gathering spontaneous natural products. For Locke the unstable or raw-material-like quality of the things of the world is the precondition for the fashioning by human beings of a new kind of stability through property.
As should now be clear, the whole drift of Locke’s teaching on property is away from the structure of thought captured in his transcendent natural law. The whole can be restated in terms of a chain of reasoning with a primitive right of preservation as its first member (see esp. I 86, II 25). As his argument proceeds, Locke shows why the natural right account is superior to the natural law account: the notion that there are natural limits preceding and grounding natural rights rests on untenable premises of a beneficent and provident God or nature.
The replacement of the transcendent natural law grounding of property by natural right is reflected, as might be expected, in the fate of the natural law limits on acquisition Locke first articulated. The same transcendent law of nature that allowed property also bound it; with the demise of that law of nature comes the demise of the limits as well.
As he does throughout, Locke proceeds in stages. He begins, let us recall, with his transcendent natural law. As God’s property, human beings are both obliged to maintain themselves, and thus to use the things of the world necessary for survival, and obliged not to harm others, even indirectly, and thus not to take so much of the things of the world that others are imperiled. Locke formulates the limitation on appropriation first as the “enough and as good” rule then as a spoilage rule. He asserts the same pattern of limitation for the appropriation of land as he had earlier asserted for the appropriation of fruits: first a requirement of leaving enough and as good, then a spoilage or use limitation (II 33, 34, 36, 37). “Before the appropriation of land,” human beings were free to take from nature what they could use without spoilage; if goods spoiled in their possession, they “had offended against the law of nature,” for they had “invaded [their] neighbour’s share” (II 37).
The same measures governed the possession of land too: whatsoever he tilled and reaped, laid up and made use of before it spoiled, that was his peculiar right; whatsoever he enclosed, and could feed, and make use of the cattle and product was also his. But if either the grass of his inclosure rotted on the ground, or the fruit of his planting perished without gathering, and laying up, this part of the earth, notwithstanding his inclosure, was still to be looked on as waste, and might be the possession of any other. (II 38)
The meaning of the limitations must be reconsidered not only on the basis of the extension to land itself but even more on the basis of the new information about natural scarcity. The discussion of the limitations on acquisition of the “spontaneous products of nature” was premised on natural abundance. In a situation of scarcity the rules look rather different. The “enough and as good” constraint directly protected the interests of others; the scarcity limitation did not, but if there is plenty the shift means little. Under conditions of scarcity, however, the shift to the spoilage limitation means a great deal. Under the latter rule, neither the quantity of goods appropriated nor the needs of others limit the right of appropriation. “He that gathered a hundred baskets of acorns or apples, had thereby property in them.” The only limit was that he “used them before they spoiled.” But to barter perishables like apples for less perishable items like nuts is “no injury . . . so long as nothing perished uselessly in his hands.” The key term is “perished,” for the actual use of the item is not essential. So long as the goods do not perish, Locke does not believe any one has taken too much, no matter how much others may lack—“the exceeding of the bounds of his just property not lying in the largeness of his possession, but the perishing of anything uselessly in it” (II 40).48 Under conditions of scarcity, the spoilage limitation does not satisfy the no-harm principle, for one person may hoard so much as he or she can (eventually) use without regard to whether this indirectly imperils others. Locke’s point is this: one’s own preservation has an absolute priority over the needs of others under the principles of nature. One has a right to whatever might be useful to one’s preservation as long as it actually can be useful. Gratuitous harm to others is ruled out, but all forms of self-benefit are legitimate. With regard to property, Locke affirms the same expansive notion of the right to self-preservation as he did in his discussion of the executive power of the law of nature.49
The extension of the limiting principle to property in land raises only slightly different issues. Ironically, perhaps, the “enough and as good” rule appears easier to satisfy for land than for “fruits” under the posited condition of the beginnings. As Locke emphasizes, unimproved land is so unproductive that there is a great deal more of it than of “fruits.” Nonetheless, the general point of the shift from an “enough and as good” restriction to the spoilage rule is the same as it was with regard to fruits. Whatever one person can usefully take, he or she has a right to, quite without regard to the needs or concerns of others. This appropriation is potentially more harmful to others, for it amounts to a more serious dispossession. The nonowner not only may not seize the hoard of nuts the owner has gathered, but may not use the owner’s land as a locus for hunting and gathering activities, so long as the spoilage limitation is satisfied, anyway. Under conditions of scarcity, in other words, the spoilage limitation indicates a severing of the link between Locke’s substantive teaching on property and the mandates of the transcendent natural law. The latter accounts for less and less, and a pure right to preservation accounts for more and more.
Accordingly, Locke treats the spoilage limitation less and less as a moral limitation and more and more as a prudential one. “Indeed it was a foolish thing . . . to hoard up more than he could make use of” (II 46). It is foolish because it is wasted labor.50 “As a man had a right to all he could imploy his labour upon, so he had no temptation to labour for more than he could make use of” (II 51). Locke here reinterprets his own spoilage rule in the same way he reinterpreted the biblical curses on Adam and Eve—as statements of how things will be rather than normative requirements, natural laws in quite another sense than his transcendent natural law.
The link between Locke’s reinterpretation of the biblical curses and his own natural law rule suggests that just as woman would be under no obligation to suffer the pain of labor in childbirth if a way around it could be devised, so human beings would be under no obligation to appropriate only what is useful in the near term if the tendency of the things to spoil or the wasteful (of labor) consequence of this could be arrested. That is just what Locke teaches. The invention of money frees humanity from the limitation of the spoilage rule. “A man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus, gold and silver, which may be hoarded up without injury to any one, these metals not spoileing [sic] or decaying in the hands of the possessor” (II 50). If the surplus product of one’s labor can be stored in money, then it is no longer “a foolish thing . . . to hoard up more than he could make use of.” Before money, Locke had said, the one who hoarded more than he could use was “dishonest” as well as foolish, for “he took more than his share, and robb’d others” (II 46). Since the introduction of money, it is as little dishonest as it is foolish.
In early times “different degrees of industry” were “apt to give men possession in different proportions,” a tendency the invention of money much accentuated, ultimately resulting in a “disproportionate and unequal possession of the earth” (II 48, 50). In civilized (money-using) countries it “can scarce happen” that “tracts of ground are to be found, which . . . still lie in common” (II 45) Put more directly than Locke does, the invention of money eventually produced that situation of possession and dispossession in which some own more than they can use and others own nothing but themselves. Locke, in other words, finally arrives at his destination, an account of the conditions that produce and make possible the master-servant relation. Masters and servants, employers and employees, rightfully exist because human beings have within themselves the capacity to overcome the natural limitations on appropriation. The waiving of the limitations signals or reflects the passing of the transcendent natural law that first generated them. It is not merely that the natural property right is one of unlimited acquisition, as Strauss and Macpherson insisted, but that that right is grounded in the natural right of preservation and not in the workmanship based natural law.51
The right to appropriate land, even to the point of private ownership of the entirety of what was common, follows from the right of preservation of the appropriators, and the rights of those who are excluded from ownership set no limit on what may be appropriated. But what of those who are excluded? Is not their right to appropriate, and thus their right to preservation, endangered by the transformation of the common into wholly private property? Locke devotes much attention to their situation, for the rightfulness of their being consigned to selling their labor for wages depends on showing that their rights have not been violated in the process of appropriation. It is not enough, in other words, to show the rightfulness of this process from the point of view of the rights of the appropriators; it must also be shown to be right from the point of view of the dispossessed.
In the early stages of appropriation of land, the amount of land is far greater than the number of persons who might appropriate it (II 33). “He that had as good left for his improvement, as was already taken up, needed not complain, ought not to meddle with what was already improved by another’s labour” (II 34). In the long run, however, more important than the surplus of land over people is the productivity of improved land. “He who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind” (II 37). Locke refers, of course, to the power of labor to produce ten or a hundred or a thousand times more than nature herself. “He that incloses land and has a greater plenty of the conveniencys [sic] 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” (II 37). The cultivator of land can support himself on far fewer acres than when the land was left to nature and thus, by taking a small portion of the land for his exclusive use, he no longer shares the natural commons with the others; by removing himself from competition with them for sustenance in the common, he has, paradoxically, benefited them. He uses the product of less land now, and therefore leaves the others more than he did before. Thus Locke’s paradox: by taking, he gives. Not merely do the others have no just ground for complaint against the appropriator, they have reason for gratitude.52
This reasoning no longer holds, in this form at least, in the world remade by money. Here the appropriators have taken all the commons and thus it is no consolation to the excluded that the appropriators are feeding themselves on the product of less land than they would have required if all were common. Moreover, Locke’s rejoinder that land remains for them to do the same with no longer holds. This is the moment when the process of appropriation would seem to rob them of their right to appropriate and thus would endanger their survival.
Locke denies both points. The dispossessed, he maintains, have consented to their own dispossession. The process could never reach this point without money, and money “has its value only by consent of men.” In consenting to the use of money, “men have agreed to disproportionate and unequal possession of the earth” (II 50).53 Locke’s recourse to consent here is no return to Grotian or Pufendorfian notions, however. On the one hand, the consent shows that the dispossessed are themselves participants in the process that led to their situation; it is not something merely imposed on them by outside predators. The consent to money is needed for the process of appropriation to run to completion, but it is not necessary in any other way to its rightfulness. The rights of the dispossessed are not violated, because their right was merely to take from the unappropriated commons what they needed for their survival. The right to appropriate land or goods was contingent on there being unowned land and goods.54
The right they undeniably have that might appear endangered is the primary right of preservation. With no land of their own and no natural common to glean, they are potentially at great risk. Yet Locke also denies that their right to life is violated. The appropriation of the land makes possible the great increase in production Locke celebrates. The use of money makes possible the complete appropriation of the land. While money excludes some from owning land, it also makes possible a yet greater increase in productivity. Money allows hoarding, but it also allows commerce, and commerce supplies an incentive for the production of surplus. Without commerce, the potentially great creative power of labor cannot be fully expressed (II 48).
The complete enclosure of the natural common, then, potentially makes for even more plenty, but only if goods can be exchanged for money and there is effective demand for the surplus that could be produced. As a result of the development of large holdings, proprietors can no longer work all their land themselves. It produces more than they can consume and requires more hands than they can supply. They must hire (or otherwise procure) the labor of others. The very circumstances that dispossess some from all land ensures demand for their labor. In place of the natural foraging of the beginnings arises a system of ownership, wage labor, commerce, and, most important of all, plenty. The so-called dispossessed are not truly dispossessed. They lack land, but “by being masters of themselves, and proprietors of their own persons, and their actions of labor [they have] still in themselves the great foundation of property” (II 44). Their right to property receives recognition in their ability to sell their labor and derive the fruits of it. They share in the distribution of goods produced in the new system, not at the same level as the owners, perhaps, but they live better (in terms of the goods necessary for survival and comfort) than even the best off in a natural common. “A king of a large fruitful territory [in America] feeds, lodges, and is clad worse than a day-labourer in England” (II 41). Everyone, even the nonowner, is better off under the advanced economy of private ownership and wage labor.55
Locke’s theory is not exclusively of either the deontological or the consequentialist variety, to use the jargon of contemporary political and moral philosophy.56 The system of property he describes is justified both in terms of the natural rights of individuals and in terms of its consequences—the material improvement of life, the better satisfaction of the natural desires than is otherwise attainable. Locke implicitly concedes that not everyone is equally better off; the owner of the means of production will be best off, no doubt, but everyone does benefit.57 The proper standard for judging the distribution of benefits is not equal distribution of the existing stock, as many of our contemporary theorists of social justice assume, but the original situation before the human economic system improved it. Locke’s treatment is, of course, only a rough one. He takes for granted, for example, something like a full-employment economy. In a less than full-employment economy, the unemployed would be genuinely threatened in their right to life and would have the right to seize what they could to survive. In the First Treatise, Locke describes this right as “charity,” which, he says, “gives every man a title to so much out of another’s plenty, as will keep him from extream want when he has no means to subsist otherwise” (I 42). This charity, it must be noted, is not the old duty to charity, binding on the wealthy, but a right to charity—that is, to the necessary means to subsistence when such can be gotten no other way—inhering in the destitute. Even when sounding most traditional, Locke is radically innovative. The implication of this right under conditions of modern economy is a modest welfare—or better, security—state, one that guarantees a job for all, or, that failing, subsistence.58 It does not justify redistribution for its own sake or in order to produce a more equal distribution of wealth per se.
Rather than welfare, charity, or redistribution, Locke identifies as “the great art of government” the promulgation of “established laws of liberty to secure protection and incouragement to the honest industry of mankind” (II 42). The principle underlying the whole process of appropriation, from the natural common to the wholly owned world—the unleashing of that incredibly productive, creative force, human labor power—is to govern societies now rationally aware of the process.59 Political economy becomes “the increase of lands and right imploying of them” and Locke identifies that, in turn, as “the great art of government” (II 42). Locke thus becomes the first to define political economy as the central task of politics.
The centrality of political economy and economic growth came to be one of the central features of the new post-Lockean natural rights republicanism, in contrast to the old republicanism. No genuine partisan of the old republicanism, such as Plato, Aristotle, or Livy, would say what James Madison said, very much in the spirit of Locke’s new “natural law” teaching: “The protection . . . of the diversity in the faculties of men, from which the rights of property originate . . . is the first object of government.”60
Let us recapitulate. Without any doubt Locke is a rights theorist who initially presents rights as derivative from the transcendent natural law that affirms natural limits or duties based on divine ownership as the primordial moral reality. As Locke’s discussion proceeds, the status of the natural law comes more and more into question, however. To say nothing of many other relevant considerations, Locke gradually denies the limitations that are the primary expressions of the transcendent natural law. Locke thus withdraws his support for the transcendent natural law. He does not withdraw his support for rights at the same time, however. Contrary to the initial impression, rights are not derivative from the natural law, but somehow independent of it.
We are perhaps to understand the natural law somewhat as Hobbes did, as “a precept or generall rule, found out by reason, by which a man is forbidden to do that, which is destructive of his life, or taketh away the means of preserving the same.”61 Locke nowhere argues systematically for such a position, but there are numerous suggestions that tend in this direction, among the most important of which is his frequent identification of the law of nature as the law of reason, or even more suggestively, his claim that “reason . . . is that law” (II 6, 30, 31, 56, 57, 96, 118, 172).62 Since he never retreats from the view of reason taken in the Questions, that it is a “discursive faculty” for moving from premises to conclusions and contains no substantive principles or apprehensions of truth in itself—that is, has no innate knowledge of any kind—we could easily understand him to mean that the law of nature states reason’s conclusion in the mode of Hobbesian natural law.63
Much about the way Locke treats rights also coheres with the Hobbesian formula for “natural law.” Locke thinks in terms of the famous triad, life, liberty, and property; he understands the right to life to be the primary right and understands the others as rights because they are conducive to “preserving the same,” to use Hobbes’s phrase. “Freedom,” Locke says, “is the fence to my preservation” (II 17). “Freedom,” he says in another place, “is . . . necessary to, and closely joyned with a man’s preservation” (II 23). Locke derives the core of the property right from the right to life in a passage very reminiscent of Hobbes’s discussion as well: “Natural reason . . . tells us that men . . . have a right to their preservation, and consequently to meat and drink and such other things, as nature affords for their subsistence” (II 25). Preservation, for Locke as for Hobbes, is the primary right, and liberty and property are derived rights. “Law in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under the law” (II 57). This description of law does not much correspond to the transcendent natural law as Locke developed it early in Second Treatise. The transcendent natural law did not take its bearings from the “interests” or the “general good” of humankind, but from the sovereign fact of divine ownership. It surely set “limitation” on human action. On the other hand, Locke’s restatement does coordinate well with an understanding of the law of nature as a set of rules not primarily aiming to limit but rather to achieve the interests—that is, preservation and what is useful to preservation, that is, rights—of humanity. In this restatement, therefore, Locke puts no emphasis on the obligatoriness of law, but mentions only the utility of law. As he says in the immediate sequel, “Could they be happier without it, the law, as an useless thing would of itself vanish” (II 57). The law is only if it is useful, and it is useful only if conducive to happiness. More broadly, the law is a means to an end variously described as “interest,” “good,” “happiness,” and finally “freedom” (II 57). The point of the transcendent natural law is to express the human creature’s relation to the divine Creator; the point of law as discussed here is “to preserve and enlarge freedom.” Locke goes further: “Where there is no law there is no freedom, because liberty is to be free from restraint and violence from others which cannot be where there is no law” (II 57). Freedom is either the “interest” or “good” of human beings or the comprehensive means to these things and more generally to “happiness,” and law, in turn, is the means to freedom. Locke’s focus on freedom is especially helpful, for he has affirmed throughout that freedom is a right (II 17). All of this leads to the conclusion that the law of reason, that is, the (non-transcendent) natural law, far from being primary and the source of rights, is secondary and derivative from rights.64
In a passage that reminds more than a little of the just-completed discussion of the improvement of land through labor, Locke identifies law as what “hedges us in only from bogs and precipices” (II 57). The chief danger (“bog and precipice”) from which law saves us is “violence from others.” Such “rules of reason” as Hobbes identifies would seem to fit Locke’s description as well; for example, Hobbes’s first and fundamental natural law is “that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of warre.”65 The first part of the rule would be the rough equivalent to the kind of natural law limitations Locke speaks of in his no-harm principle, the second the authorization of use of force via the executive power of the law of nature. From the first, Hobbes derives a second law of nature—to contract into civil society when possible. Again, Locke endorses this view: reason suggests civil society as the remedy for the evils of the state of nature.
So far as Locke retains a law of nature, it appears to be very close to Hobbes’s. In terms of the criteria of genuine law set forth in the Questions, Locke’s “law of reason” does not qualify as genuine law. It is neither the product of the authoritative lawgiver, nor, therefore, truly obligatory, nor, finally, properly promulgated. As Locke reconfirms in Two Treatises, “no body can be under a law, which is not promulgated to him; and this law [is] promulgated or made known by reason alone” (II 57). But it is not promulgated or made known in the state of nature: in the state of nature, human beings are “ignorant” of the law of nature (II 124).
The law of nature, or the law of reason, as the set of rules that state the means for the security of rights, differs in content very little from proper civil laws, which aim at that same preservation of rights. Thus Locke can say, “The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by humane laws known penalties annexed to them, to enforce their observation.” The natural law becomes genuine law at the moment it comes to be embodied in the civil law, for then all the qualities of law are present: lawgiver, promulgation, obligation, and sanction (II 135). Since the law of nature sets the standard all properly made civil societies aim for—the security of rights—Locke perfectly appropriately insists that “the law of nature stands as an eternal rule to all men, legislators as well as others” (II 135).
Locke’s natural law teaching appears to be very similar to Hobbes’s. This is admittedly a very controversial conclusion within the scholarly literature on Locke. A justly controversial conclusion, I would add, for even though there are important similarities to Hobbes lurking not too far beneath the surface of Locke’s text, the surface impression of important dissimilarities also points to important truths about the character of Locke’s political philosophy. The two philosophers differ, of course, on the important practical outcomes of their philosophies, Hobbes siding with absolutism (royalist or not, he didn’t care too much) and Locke agreeing with the Whigs in their rejection of absolutism. Behind—and in a way the source of—these very important practical disagreements lies an even more important disagreement on fundamentals, however. Both Hobbes and Locke may understand so-called natural law as in reality a series of rules derived from and in service of the more fundamental moral reality of natural right, but Locke understands natural right substantially differently from Hobbes.
The difference between Hobbes and Locke on natural right appears with greatest clarity in the cluster of issues surrounding Locke’s treatment of property—the argument for a natural right to property, the establishment of self-ownership, and the treatment of all rights or objects of rights as property.66 To say there is property by nature is to say there is justice by nature, for, in the common understanding of the day, “justice is the constant will of giving to every man his own.” As Hobbes explains the point, “Where there is no own, that is, no propriety, there is no injustice.” Or, as Locke puts it, “Where there is no property, there is no injustice.”67 Thus natural property, or natural “own,” is the ground or prerequisite for natural justice.
Hobbes strongly insists there is no natural justice. “Before the names of just and injust can have place, there must be some coercive power, to compell men equally to the performance of their covenants.” Only with the establishment of civil society does justice come to exist. In the state of nature “there is no propriety,” for “all men have right to all things.” Hobbes understands property just as Locke does, as a claim with an implication of exclusivity, or a duty of forbearance and abstention on the part of others. Hobbes’s right of nature lacks any such duty of forbearance: the natural right of one individual imposes no duties whatever on others and therefore is a right, but not property.
Pufendorf had mounted an astute critique of Hobbes’s right of nature as contrary to the nature of rights as such. A “real right” involves a “moral effect” in others, that they “may not hinder him, against his will.” To a right “in the strict sense,” Pufendorf says, “there must always be some obligation in another corresponding.”68 According to this notion of the necessary correlativity of right and obligation, Hobbes’s right of nature is not a proper right. Thus, according to Pufendorf, all proper rights have the character of property.
Pufendorf concedes, however, that “the word ‘right’ is highly ambiguous.”69 Hobbes’s use of the term “right” to signify a liberty with no correlative duty of any sort is one of the primary instances of the sort of ambiguity he has in mind, and Locke’s recourse to the language of property represents his effort to avoid some of these ambiguities. Whether Hobbes’s right of nature deserves to be called a right or not (in the Questions, Locke suggests yes), Locke uses the language of property to signal that he is thinking of right in the Pufendorfian manner, as entailing a concomitant duty in others. Property is what is ours, and that, by definition, means it is not others’.
Where Hobbes affirms no natural property, or a right with no correlative duty, Locke insists on natural property and thus on natural justice. “Every man has a property in his own person”; in this and every case, that in which a man has property “nobody has a right to but himself.” However much Locke’s natural ownership may approach Hobbes’s right of nature, it still does not amount to Hobbes’s unequivocal right of nature, the right of every man to everything. Even in the state of nature, Locke has grounds for saying certain actions are wrong. The practical differences between Hobbes’s absolutism and Locke’s liberalism derive not merely from different judgments the two make regarding the political means to the natural end, but, more important, from a difference in their understandings of the end, or of natural right. Natural property, in Locke’s extended sense, sets the purpose for and serves as standing guide and limit to political power.70
The claim to property in one’s own person is thus simply central to Locke’s enterprise. On the one hand, it points toward his break with the entire premodern tradition. He had initially brought that tradition into Two Treatises in the form of his assertion of divine ownership, but now shows that human beings are self-owners. That implies a certain sovereignty, or in Hobbes’s sense, a liberty they possess with regard to their persons and actions, including the liberty to commit suicide. On the other hand, the claim to property in one’s own person points toward his break with Hobbes: accompanying the primordial right is a claim to exclusivity that distinguishes Locke’s natural property from Hobbes’s right of nature. If, as I have argued, Locke’s natural property does not follow from, but rather precedes, the so-called law of nature (reason), then whence derives the exclusive character of the property right? What is the origin of that in the Lockean notion of natural right that goes beyond Hobbes’s natural right as pure liberty? For Hobbes, as for Locke in the Questions, it was, after all, the very fact that natural right precedes natural law that led to the conclusion that there is no property by nature.
Hobbes’s right of nature, like Spinoza’s, represented the result of his attempt to set human beings into nature in a way earlier thought did not. The same mechanistic principles that account for nature as a whole also account for humanity. The same principles of motion that account for the actions of all animals account for human beings as well. The differences between human beings and other beings are mere matters of degree.71 Locke, on the other hand, draws a much stronger line of demarcation between human and other beings. Whereas all animate being seeks preservation and is directed “to the use of those things . . . serviceable for . . . subsistence [via] the desire, the strong desire of preserving . . . life and being,” only human being is “taught” and “assured” that he “had a right to make use of those creatures, which by his reason or senses he could discover would be serviceable thereunto” (I 86). Where Hobbes wavers on the question of whether natural right is unique to human beings or universal to all or all animate being, Locke clearly asserts that right is only human, for only humans formulate the claim to right.72
He returns to this same theme in the very place he announces the self-ownership thesis. “Though the earth, and all inferior creatures be common to all men, yet every man has a property in his own person. This no body has any right to but himself” (II 27). The earth and all the lower animals are “common,” yet the human person is property of the human self, that is, private to themselves, possessing a claim of right not to be interfered with. This distinction between human beings and other animals accounts for the fact Pufendorf had earlier pointed out, that only human beings generate property, despite the fact that other animals also interact with the world and must seize and digest other beings in order to survive. Self-preservation sets the need that appropriation serves, but it cannot fully account for property.73
Locke and Pufendorf raise the same objection to Hobbes: human beings alone have property, and what is unique cannot be accounted for by what is universal. In the first instance, Locke, like Pufendorf, merely wishes to reconsider the phenomenology, so to speak, of human-rights claiming. They have two points: first, human beings raise claims of right, whereas other beings merely act with the liberty ascribed to them; second, according to Locke, the claim of right is not merely a claim of liberty. My claim of my right to my life as a matter of observed fact includes a claim of exclusivity. My life, my body, my actions—being mine means they are not yours. All things equal, this is a claim that it is wrong for you to interfere with them. At the very least, it means that if our preservation does not come into competition or conflict, it would be injustice for either of us to harm the other. If we do come into competition, or if we are in such a situation of uncertainty that we do not know whether we are in conflict or not—that is, if we are in the situation typical of the state of nature—it is no injustice for us to harm each other. Even if in the state of nature it is difficult, if not impossible, to distinguish rightful from wrongful violence in practice, it nonetheless remains true in principle that gratuitous harm to others is wrong. Locke has a clearer answer than Hobbes to the problem posed by the Marquis de Sade.
The claim of right is thus more than and different from Hobbes’s claim of liberty. So far as I raise a claim to property, in myself or my belongings, I raise by definition a claim with implications of exclusivity. On that basis I expect of right that others ought to respect my claim and forbear from my property. Locke does not, as Shapiro claims, “adopt . . . the Hobbesian tactic of separating rights from obligation.”74 This does not necessarily mean I expect they will so forbear, but if they do not, I will consider their actions unjust. This is an analytic truth, implicit in the very notion of property I am deploying. If I raise this claim, and do so not on the basis of some exceptional feature of myself (for example, divine donation to myself alone) but on the basis (somehow) of my bare humanness, then the logic of my own claim for myself leads me beyond the claim I raise for myself to recognize like claims of others. If my being owner of myself gives me a rightful expectation that others will not gratuitously harm me, I am led to see that their claim to be owners of themselves gives them the same rightful expectation that I and others will not gratuitously harm them.
My claim and the limits on others implicit in it implies a system of rights and concomitant duties for all, a system of mutual claims and recognition. The duty or quasi-duty of forbearance from gratuitous harm is not derived from some antecedent law or duty, it is the indirect consequence of the very claim I and others raise on our own behalf. Duty or quasi-duty follows from right, rather than the reverse. Given the way in which the system of rights is generated, it is no accident that the example Locke uses of how morality could be deductive is the proposition “where there is no property, there is no injustice.” If there is property in self, and by extension in the things appropriated as discussed in chapter 5 of the Second Treatise, then there is injustice—violation of right—in interference with this property.
Locke never believed that the logic of rights sufficed, of course. Civil society, the coercive force of authorities, and the authoritativeness of the civil law are absolutely required to make natural rights effective and secure. In this respect Locke surely resembles Hobbes, but he nonetheless affirms a preexisting normative right, which, ineffective as it may be in itself, grounds the entire edifice of political life and political philosophy.
If there is property, there can be injustice. The first or primary property is the person him or herself. Locke announces that theme in chapter 5 in order to explain how property in the things of the external world is possible; the discussion of the things of the external world also helps explain how there can be property in the person. The chief point of Locke’s discussion of property in nature is the role of labor in the making of property, both as appropriating power and as transformative power. Through labor, what was not me becomes me, or at least mine. Labor transforms and appropriates; it remakes the given world, the almost worthless raw material, into new and humanly valuable things. If the “great foundation of property” is labor, then Locke is suggesting that the person is himself the product of transforming and appropriating labor. Human making, not divine making, is the primary moral fact. The chapter on property leads up to the suggestion that human beings are self-owners because they are the makers of their selves and they own what they make.
That suggestion is developed further in Locke’s more philosophical Essay Concerning Human Understanding. Wherever Locke speaks of self-ownership in Two Treatises he carefully employs the same precise formula: men have property in their persons (II 27, 44, 173). “In the ordinary way of speaking,” Locke notes in the Essay, “the same person, and the same man, stand for the same thing.” He disagrees, however; man and person are terms or ideas that refer to quite different things. “The idea in our minds, of which sound man in our mouths is the sign, is nothing else but of an animal of such a certain form.” Thus the identity or sameness of a man is of precisely the same sort as the identity of an animal. “An animal is a living organized body, and consequently, the same animal . . . is the same continued life communicated to different particles of matter, and they happen successively to be united to that organized living body.”75 A man is an animal, and as animal the identity of a man resides in the same continuity of life over time. Nonhuman animals are incapable of personhood, however, for a person is “a thinking intelligent being, that has reason and reflection.” The term person “belongs only to intelligent agents capable of a law and happiness and misery.”76 Personhood is something non-animal-like.
The distinction between man and person parallels Locke’s distinction in Two Treatises between animals and human beings. All animate beings share in life and in the strong drive to preservation, but only in human beings does this drive become a right. Likewise, all animate beings share in digestion, the process by which “different particles of matter” come to be “united” to “one organized living body,” yet only human beings are proprietors. Human beings have property in their persons, and have property because they are persons.
Locke defines a person as “a thinking intelligent being, that has reason and reflection, and can consider itself as itself, the same thinking thing in different times and places.”77 A person is a “thinking being” precisely because it is “that consciousness which is inseparable from thinking.” Consciousness is inseparable from thinking because it is “impossible for any one to perceive, without perceiving, that he does perceive. When we see, hear, smell, taste, feel, meditate, or will any thing, we know that we do so.” Locke’s language can be misleading, however, as the case of nonhuman animals makes clear. What does it mean to say we perceive that we are perceiving, or know that we are, say, smelling? Do I know I am smelling so far as I am smelling? Is my perception, my knowledge of it, the perception itself? Or is it further knowledge of a reflective sort, such that I might be able to utter the proposition “I know that I am smelling”? I can be smelling, perceiving an odor, and therefore knowing it in one sense without at the same time knowing it in the other sense. I may be smelling but have no separate idea that I am smelling, that is, be conscious of a smell but not of smelling.78
Only in the first sense is it “impossible for anyone to perceive, without perceiving that he does perceive.” Animals certainly perceive and have consciousness in this first sense; to perceive is to have that consciousness which is the perception. At times, Locke is willing to call perception “thinking,” but his more considered judgment is that it is not: “Thinking, in the propriety of the English tongue, signifies that sort of operation of the mind about its ideas, wherein the mind is active; where it with some degree of voluntary attention, considers any thing. For in bare perception, the mind is, for the most part, only passive.”79 Thinking, properly speaking, is like labor—active and productive.
Not consciousness as such—what is present in “bare perception”—but self-consciousness constitutes the person. To be more precise: “Person is the name for [the] self. Wherever a man finds, what he calls himself, there I think another may say is the same person.”80 To recognize another as a person is to recognize the other as a self. So far as one’s touchstone for recognizing another as a self must be one’s consciousness of one’s self as a self, the structure of the self-person relation already suggests something of the reciprocal recognition of claim and limit present in the very notion of property. In any case, to understand person and therewith one’s property in one’s own person, we must, it is clear, understand self.
Person “considers it self as it self, the same thinking thing in different times and places.” That is to say, person is a structure of consciousness of the sort that identifies itself as a self persisting over time and as the persisting and unifying element amidst a variety of perceptions, passions, and actions: as the person experiences experience as his or hers, actions as his or hers, pleasures and pains, happiness and misery as his or hers, the self—the “I”—stands alone and partially outside the perception, passions, and actions it experiences or undergoes.81 The experiences and actions of the self pertain to the self, belong to the self, but do not exhaust it. The relation of the self to its life is exactly the reaction of a person to his or her property—property is both other and own. If, as Locke says, the self supplies the identity, that is, continuity, of a person over time, the self must both be present in and stand outside any, and therefore all, of its experiences.82
The self is not, however, a natural thing; it is not a substance either material or immaterial. It is “the same consciousness that makes a man be himself to himself.” Self is merely consciousness—consciousness of self. “Personal identity consists not in the identity of substance, but . . . in the identity of consciousness.” More bluntly put, “Consciousness alone makes self.” Locke goes so far as to say that the same consciousness, even if (somehow) united to different substances, would constitute the same self or person. Self is emphatically not soul. Locke can imagine the same soul inhabiting or informing two different human beings, “for souls being, as far as we know any thing of them in their nature, indifferent to any parcel of matter, the supposition has no apparent absurdity in it.” In such a case the soul would have consciousness of the actions and experiences only of that person to whom it belonged, and therefore neither person could conceive himself the same person with the other.83
Self is consciousness of self, but the self that comes to consciousness is not a preexisting, self-subsisting entity. Consciousness of self is either an idea of sensation or one of reflection. It might appear to be an idea of reflection, that is, a “perception of the operation of our own minds within us, as it is employed about the ideas it has got.”84 It is not, for example, like the idea of sensation, an operation of the mind that occurs independently of our forming an idea of it. Self differs from sensation and other primary ideas of reflection in being self-constituted. Self-consciousness is both consciousness and cause of self.
The more active faculties of the mind are required for the consciousness or construction of self precisely because it is self-constituting. Locke does not give us a detailed analysis of the generation of self, but it is clear that it involves a number of “higher” or more complex mental faculties, which the brutes either altogether lack or possess to a much smaller degree than human beings. Nonhuman animals are not persons, and thus not rights-claimants and rights-bearers, because they lack the intellectual powers to constitute themselves as selves. One such necessary power is the power of retention in both its forms as contemplation (“keeping the idea, which is brought into it, for some time actually in view”) and in the form of memory (“the power to revive again in our minds those ideas, which after imprinting have disappeared, or have been as it were laid aside out of sight”). Since self unites past and present actions and experiences, memory is central to it. Without memory, “an intellectual creature . . . in [its] thoughts, reasonings, and knowledge, could not proceed beyond present objects.” Retention is thus a necessary—but, Locke insists, not a sufficient—condition for person-hood. “This faculty of laying up, and retaining the ideas, that are brought into the mind, several other animals seem to have, to a great degree, as well as man.”85 He gives the example of birds that remember tunes and attempt to imitate them. Nonetheless, human powers of retention far outstrip those of other animals, in part, it would appear, because of other mental powers that more clearly differentiate humanity and enhance human memory.
Human beings most clearly surpass the brutes in their far greater facility at comparing and composing ideas, and altogether differ from the brutes in being able to abstract ideas. Comparing ideas depends on the prior power of discernment, that is, the power to “distinguish between the several ideas . . . in our minds.” Once the mind distinguishes ideas it can “compare them one with another, in respect of extent, degrees, time, place, or any other circumstances.” Brutes have this latter power “not in any degree.” It is, Locke believes, “the prerogative of humane understanding, when it has sufficiently distinguished any ideas, so as to perceive them to be perfectly different, and so consequently two, to cast about and consider in what circumstances they are capable to be compared.” Animals compare ideas as they present themselves, but humans “cast about.” The human power is far more active; human beings are far less immersed in the given world than the brutes are.86
The same freedom that makes possible active comparison of ideas also reveals itself in the power of composing, “whereby [the mind] puts together several of those single [ideas] it has received from sensation and reflection, and combines them into complex ones.” Here, too, “brutes come far short of men.” They “take in and retain together several combinations of ideas,” yet “they do not of themselves ever compound them, and make complex ideas.” The power to compound grounds the mind’s ability to form complex ideas. These instance the mind’s active, laboring character extremely well. “The mind is wholly passive in the reception of all its single ideas,” but “it exerts several acts of its own, whereby out of its simple ideas, as the materials and foundations of the rest, the others are formed.”87
Most important, however, is the mind’s abstracting power, “whereby . . . the mind makes the particular ideas, received from particular objects, to become general; which is done by considering them as they are in the mind such appearances, separate from all other existences, and the circumstances of real existance, as time, place, or any other concomitant ideas.” In the process of abstraction, “ideas taken from particular beings, become general representatives of all of the same kind.” Only because of this power can human beings give names to ideas, and thus abstraction serves as the germ of language. Locke partially agrees with Aristotle—human being is the speaking being—but he traces the power of speech to this yet more fundamental power. For Locke it is a power, not an insight into being. Human intellectual power makes and remakes ideas, with little necessity that they conform in any particular way to reality.88
While Locke had spoken very tentatively about the relative power of humans and animals with respect to the other powers of the mind, he states firmly that he “may be positive in that the power of abstracting is not at all” in the lower animals. “The having of general ideas [produced by this power] is that which puts a perfect distinction betwixt man and brutes; and it is an excellency which the faculties of brutes do by no means attain to.” Locke speaks with such certainty, for he can find “no foot-steps in them, of making of general signs for universal ideas,” especially no “use of words.”89 The power of abstracting is “that proper difference wherein [brutes] are wholly separated [from man], and which at last widens to so vast a distance. Speech and reason are thus not equivalent for Locke, as they had been for Aristotle. Animals, Locke concludes, possess “some reason,” but no speech or power of abstraction.90
The abstracting power appears to be a major contributor to human excellences. For example, memory is stronger in human beings because they can abstract from the mass of particulars and fix their general ideas with names. Likewise, the power to abstract much enhances the power to compound, because the general ideas, purified of the accompanying din of other ideas served up by the mind, can more readily be combined with others, for two reasons: they are more readily focused on and made stable and, perhaps more important, the process of abstraction frees the mind of the givenness with which ideas first are received. Abstracting lifts the mind out of the given flow of sensation and allows it to stand in semisovereign sway over its own contents.
These active intellectual powers, especially the power of abstracting, distinguish human beings from animals and thus must stand somewhere behind the fact that humans constitute themselves selves or persons, as animals never do. Surely these powers are necessary conditions for the constitution of the idea of the self. The abstracting power, especially, bears on the self, for the idea of the self involves precisely an act of abstracting self from the other contents of consciousness. Powers of combining also have their place. Reflection gives a series of ideas of mental faculties—perception, discerning, and so on91—and the mind assembles these to form an idea of mind, and ultimately of consciousness as such.
Although Locke forbears from presenting an analysis of the generation of the idea of the self in terms of the operation of the faculties of the mind on the raw materials contained in the simple ideas of sensation and reflection, he does make a few pregnant suggestions that point toward the nerve of his understanding of the essentials of generation of the self. We must look somewhat more carefully now at Locke’s discussion of the person and the self. “Person . . . is the name for this self.” What is the self to the self is person to another. Almost at the very end of his discussion of person and self, Locke presents a brief description of what “founds” the process whereby the self “appropriates” to itself its actions and thereby, in effect, constitutes itself as well, for that appropriation requires or implies the positing of self as that which takes responsibility for its “owns” as its own. “All which is founded in a concern for happiness, the unavoidable concomitant of consciousness: that which is conscious of pleasure and pain desiring that that self that is conscious should be happy.”92 Locke had employed this same theme in his definition of self: the self is “sensible or conscious of pleasure and pain, capable of happiness or misery, and so is concerned for itself, as far as that consciousness extends.”93
Pleasure and pain, and then happiness and misery, are central to the constitution of the self. The self cannot be understood solely in terms of the faculties of the mind. Pleasure and pain are pervasive, near-universal experiences, for “one or other of them join themselves to almost all our ideas, both of sensation and reflection: and there is scarce any affection of our senses from without, any retired thought of our mind within, which is not able to produce in us pleasure or pain.”94 From the near-universal experience of pleasure and pain the mind’s capacity to distinguish ideas from one another, and then to abstract them from their accompaniments, produces general ideas of pleasure and pain. We never experience pure pleasure, or at least never for any length of time. The evanescence of pleasure is a source of unease that, together with the human capacity for composition of ideas, produces the idea of happiness and that of its partner, misery. “Happiness and misery are the names of two extremes, the utmost bounds whereof we know not.” We do experience “several instances of delight and joy on the one side, and torment and sorrow on the other,” but happiness is “what eye hath not seen, ear hath not heard.”95 Since we never experience it, happiness is an idea the mind compounds for itself from the “raw materials” furnished by sensation and reflection. “The lowest degree of what can be called happiness, is so much ease from all pain, and so much present pleasure, as without which any one cannot be content.” At a higher degree, “happiness . . . consists in the enjoyment of pleasure, without any considerable mixture of uneasiness.”96
Since happiness as defined by Locke is unattainable, it exists as an object of pursuit: human beings devote their lives to the pursuit of happiness. This special kind of pleasure and absence of pain has a naturally compelling force for human beings once its idea has been formed. Not merely do human beings separate out the ideas of pleasure and happiness, pain and misery, but they delight in the one and dislike the other. As opposed to other ideas, in which the consciousness is buried in the idea itself, so to speak, pleasure and pain, especially in their alternation, and happiness and misery as states to be pursued or avoided call attention to the very consciousness that experiences these affects. The consciousness is not lost in the idea, but stands as attracted to one and repelled by the other. Consciousness thus comes to consciousness as other than its ideas because of the non-neutrality of the ideas of pleasure and pain. Consciousness is constituted as the seat of pleasure and pain, and thus of the ideas and volitions. Consciousness thus becomes self-consciousness.
Locke’s self has two dominant features. First, it is a consciousness of itself as itself, and second, it is that which posits itself as persistent or continuing or unifying of “existence” over time. The temporal dimensions of the self also follow from happiness and misery. “Since our voluntary actions carry not all the happiness and misery, that depend on them, along with them in their present performance; but are the precedent causes of good and evil, which they draw after them, and bring upon us, when they themselves are passed, and cease to be; our desires look beyond our present enjoyments, and carry the mind out to absent good, according to the necessity which we think there is of it, to the making or increase of our happiness.”97 Contrary to a common impression often left by Locke’s discussion, self and person are not essentially constituted by memory of the past. The past, operating via memory and the other active powers of the mind, is necessary for the formation of the ideas of pleasure, happiness, and so on, and thus of self and person, but the self thus formed is essentially futural. For the self, happiness, the unavoidable object of its existence, never present to consciousness, always exists as a goal to be moved toward; the unease caused by its absence serves as a goad toward action. The self extends itself forward and backward in time. It posits itself as the same self that will be the beneficiary or loser of happiness or misery in the future for actions taken or projected in the present. It posits itself as the source of past actions and experiences from which it has been or presently is the beneficiary or loser.98
The self is constituted around happiness and misery and therefore the self is always “self-concerned.” “Self is . . . conscious of pleasure and pain, capable of happiness or misery, and so is concern’d for itself, as far as that consciousness extends.” The self is decidedly self-interested, “happiness and misery being that, for which every one is concerned for himself.”99 Self-interest is to be understood in the first instance as securing pleasures for the self or avoiding pains and discomforts. Locke’s ontology of the self points in this way, too, toward a politics of the realist rather than idealist sort and an orientation toward existence of the kind he reveals in his teaching on property: the search for comfortable preservation through labor.100
Even more important, however, is the very structure of the self Locke uncovers; the self is not merely disposed toward property, but is itself property. Locke appears more certain of this than of the mechanism by which it produces itself. The self is that form of consciousness that posits itself as owner and master of itself—of “its” body, for one, those bodily things “joined to or affected with that consciousness.” A dismembered limb, no longer involved in the community of consciousness that is the self, no longer counts as part of the self.101 Above all, self is owner and master of its ideas and its actions. The mode by which ideas and actions come to be owned and mastered is precisely the same as the way in which unowned parts of the external world come to be owned—by appropriation, that is, by finding them ours, by finding the self in them as acting or suffering power. The self is just that empty center of consciousness that contains and possesses all its appearances. The self as empty center of consciousness—pure ego—is owner; the self as array of possible ideas and actions is owned.
Self-ownership has the character both of right and of inalienable right. The claim to ownership over one’s self implies the claim to personal sovereignty over the field of the self to the exclusion of others. To be a self is to be owner of self, proprietor of one’s actions, and actor in terms of one’s own happiness, that is, one’s pleasures and pains. So far as we are owners of our selves, we claim the right to dispose of our actions in our own self-ish way in pursuit of our own happiness. So far as we recognize our claims to life, liberty, and property as resting on our self-ownership, we are logically (if not practically) impelled to grant or recognize the same claim in other persons. As persons, the others are selves, constituted in the same manner, implicitly raising exactly the same claim. The rights, moreover, are inalienable because they inhere in the very structure of the self. There is no way they can be given away, for the self cannot deconstitute its own basic structure as self-owning consciousness.
Self by its nature is a rights-bearer and free, but Locke emphasizes almost as much the other side of rights and liberty; person, the self gone public, refers “only to intelligent agents capable of a law.” Indeed, Locke emphasizes that person “is a forensick term appropriating actions and their merits.” Self is that consciousness that appropriates one’s own actions to one’s own happiness; person is that which is held responsible to legal rules, and thus answerable to “reward and punishment on account of any such action.”102
Self grounds rights; person grounds morality proper, because “moral good and evil . . . is only the conformity or disagreement of our voluntary actions to some law, whereby good or evil [pleasure or pain] is drawn on us, from the will and power of the law-maker.”103 Critics often find Locke’s emphasis on reward and punishment as essential to morality either meretricious or simply confused about the distinction between motivation and obligation. The role of the idea of happiness in the constitution of the self reveals why reward and punishment are so essential to the person, law, and morality. Action for which we can be held responsible is action that the self appropriates to itself via its assimilation to its happiness or misery. Reward and punishment—the happiness or misery that results not from the natural consequences of actions but from the artificial interposition of other human voluntary action—is required to make human beings capable of law, that is, of morality.
Locke’s self is necessarily self-interested, even self-ish, but for all that not antisocial. Society suits Locke’s individual, even if human beings are not naturally sociable.104 The analysis of the state of nature and of property reveals how much human beings benefit from and rationally desire society. The social connections run even deeper: the mental faculties most constitutive of human being, especially the power of abstraction and thus, eventually, the power of language, point toward society, for language is an essentially social phenomenon. Locke’s analyses aim to show, however, that human sociability, as opposed to animal sociability, is not a natural endowment but an acquisition. His political analysis proper is meant to show that government, the coercive authority that supplies reward and punishment, is indispensably necessary for the successful establishment and stable maintenance of social life.
Locke traces right, or property in the extended sense, straight back to the very structure of the self, in that the basic or grounding principle of his political philosophy, self-ownership, follows more or less directly from that structure. Yet human beings do not regularly—perhaps not at all, prior to Locke—understand themselves in this way. The self is self-deceived. Some, like Grotius, see no difficulty in human beings belonging to others; many, like those appealed to by Locke’s transcendent natural law, are quicker to see divine ownership than self-ownership. Others, like Plato or Aristotle, do not see the question in terms of ownership at all, either self or divine, and think in terms of soul rather than self-consciousness. But if Locke has uncovered the very structure of the self, constituted by self-consciousness itself, then the critical idea and its political-economic implications should be clear to all, one would think. Locke clearly does not agree: the self may be constituted so, and yet may misunderstand itself, understanding neither its own constitution nor the moral and political implications thereof. A curtain, woven mostly from words that systematically mislead, stands between the mind and its own grasp of itself. Before Locke, human beings thought of themselves as substances—soul or the like—not self-constituting consciousness. Complete access to the true structure of the self is available only through Locke’s “new way of ideas,” a radical and profoundly disruptive reorientation of thought.105
Lockean political philosophy has a double task made doubly difficult by the paradoxes above: Locke’s truth is a truth embedded in reality, and yet to be fully effective it must be known. The freedom of the mind and the self-defining character of happiness imply that human beings are free within some range to live their lives in ignorance of the truth:
Thus far can the busie mind of man carry him to a brutality below the level of beasts, when he quits his reason, which places him almost equal to the angels. . . . The imagination is always restless and suggests variety of thoughts, and the will, reason being laid aside, is ready for every extravagant project. (I 58)
And, Locke speculates in an uncharacteristically poetic passage, it can hardly be otherwise, “in a creature whose thoughts are more than the sands, and wider than the ocean, where fancy and passion must needs run him into strange courses, if reason, which is his only star and compass, be not that he steers by” (I 58).
But reason is not what most steer by and, as he saw very early on in the Questions, most resist it. The truth is needed in order to set things to rights, and yet the truth cannot be served up straight. Locke’s solution is his transcendent natural law, a teaching that compromises his understanding of the truth with an understanding more at home among those whose imagination carries them into insupportable but comforting hypotheses.106
If Locke had to present his teaching in a form quite different from the truth as he understood it, then what difference does his truth make? Steven Dworetz raises a form of this question in his thoughtful study of the impact of Locke on the American founding generation. Let us say, he says, that there are various plausible ways to read Locke. Let us even say that the Locke who rejected the workmanship argument and its theistic premises is the real Locke; yet the Locke who made an impact on history is not that one, but rather Locke as understood by those who took him up. Here Dworetz believes the evidence is overwhelmingly in favor of a theistic Locke.107
Let us say that is true, that most readers of Locke failed to penetrate the heart of his philosophy and, therefore, that the historical task of transforming Whig thought was accomplished in the main by Locke the theist, promoter of the idea of divine workmanship and ownership. Dworetz’s reasonable point overlooks a matter of great importance, however. Locke may present an argument with echoes and more than echoes of traditional views, and may appeal and more than appeal to traditional habits of thought and commitments of opinion, but nonetheless his transcendent natural law argument was made to order according to specifications provided by his underlying understanding of rights as property. Locke deploys quasi-traditional forms of argument to lead readers to conclusions mostly congruent with and ultimately derivative from his wholly untraditional premises. Readers who buy the theistic Locke are victims of bait-and-switch marketing. Locke struggles to minimize the impression of breaking with accepted views, but such a break is present and willy-nilly makes itself felt. It is no accident, I suspect, that readers like Dworetz and Geraint Perry find the divine workmanship-ownership grounding of Locke’s political philosophy unconvincing and irrelevant, and yet find his political philosophy still vital and important.108 They find themselves, it would seem, in the position of Filmer surveying Hobbes: Filmer liked the Hobbesian building, the absolutist state, but he disliked the foundation, the right of nature. In the case of Locke, however, the building stands while the “foundation” crumbles, because the apparent foundation never was the basis on which the building was actually constructed.