LECTURE 7 John Locke: Property Rights John Locke believes: There are some rights so fundamental that no government can over-ride them Those fundamental rights include the Natural Rights of Life, Liberty, and Property The right to property is not just a right given by government, it is a Natural Right in the sense that it is PRE-POLITICAL It is a right that attaches to individuals, as human beings, even before government and law come on the scene (HENCE THAT IS WHAT LOCKE MEANS BY THE WORD NATURE ) The state of Nature is the state of liberty Human beings are free and equal beings There is no natural hierarchy, we re free and equal in the state of nature And yet, there is a difference between a state of liberty and a state of license, because there is a law of nature constraining what we can do even though we re free, even though we re in a state of nature Constraints: Basically, not free to violate the law of nature The rights we have, we can t give up nor can we take them from someone else life, liberty or property. Nor can we take my own life, liberty, or property Example: I cannot take my own life or sell myself into slavery. Example: I cannot give to somebody else absolute arbitrary power over me. Where does this constraint come from? Locke gives 2 answers. Religious Argument: Rational Argument: If we properly reflect on what it means to be free, we will conclude that freedom does not mean doing whatever we want Religious Rational This leads to conflicting ideas: 1. Our natural rights are unalienable (i.e., I own them, but in a limited sense in that I cannot give them up or sell them.) a. If I the right is unalienable that makes something I own less fully mine, but b. For a right to be unalienably mine makes it is more profoundly mine. (LOCKE s VIEW) How can there be a right to property before there is Law?
Moving from we own ourselves, or have property in our persons to we own our own labor. Whatever we mix our labor with becomes our property. Why? We not only acquire a property in the fruits of the earth, but also, if we till and plow and enclose the land, we own the land and its plants. So in believing in unalienable rights, Locke is distancing himself from Libertarians, but when it comes to property rights he begins to look Libertarian again That is: we are the proprietor of our own labor and the fruits of our labor and in the land that we enclose and improve Recent Drug-Patent Laws Dispute - U.S. wants all countries to respect the patents on pharmaceuticals Aids crisis in Africa American aids drugs hugely expensive, so South Africa began buying a generic version of the drug at much less cost U.S. says generic manufacturer must get a license or U.S. will sue South Africa U.S. Drug Company gave in What is wrong with Locke s argument that private property can arise before Laws? If the right to private property is natural and not conventional, if it s something that we acquire even before government, how does that right constrain what a legitimate government can do?
To determine if Locke is a critic or supporter of Libertarianism, we must ask, What becomes of our natural rights once we enter into society (to leave the state of nature and be governed by the majority and a system of human laws)? Pro-Libertarian: The Law of Nature persists once government arrives. For those human laws are only legitimate if they respect our natural rights our unalienable rights to life, liberty, and property. Believes in a very limited government. But what counts as my property, what counts as respect for my life and liberty, are for the government to define. That there be property, that there be respect for life and liberty, is what limits government. But what counts as respecting my life and property that is for governments to decide and define. CONTRADICTION? TO DETERMINE, WE MUST LOOK AT WHAT DOES LEGITIMATE GOVERNMENT LOOK LIKE FOR LOCKE? In his (John Locke s) Second Treatise of Government, John Locke (1632-1704) argues that legitimate government is a limited government based on consent, in which the majority rules but may not violate people s fundamental rights. At first glance, Locke s theory may seem familiar, but it also conceals some puzzling questions. On Locke s view, a legitimate government may not violate our natural right to life, liberty, and property. But Locke allows that government may legitimately take our property through taxation and require citizens to sacrifice their lives in war. If government may do these things, then what counts as a law that violates our rights? SELF-TEST QUESTION 1 What does it mean for a right to be unalienable? a) Others can take it away from me whenever they want. b) Others cannot take it away from me, but I can give it up or trade it away. c) Others can take it away from me whenever they want, but I cannot give it up or trade it away. d) Others cannot take it away from me and even I cannot give it up or trade it away. e) Others cannot take it away from me as long as protecting it maximizes overall happiness. QUESTION 2 According to Locke, in the state of nature there is a law of nature that puts constraints on what individuals can do even though they are free. What are these constraints? a) In the state of nature, individuals are not free to enforce the law of nature. b) In the state of nature, individuals are not free to acquire property. c) In the state of nature, individuals are not free to give up their right to their own life, liberty, and property, but they are free to take other people s life, liberty, and property. d) In the state of nature, individuals are not free to take other people s life, liberty, and property, but they are free to give up their right to their own life, liberty, and property. e) In the state of nature, individuals are not free to take other people s life, liberty, and property nor are they free to give up their right to their own life, liberty, and property. QUESTION 3 According to Locke, can there be a right to private property even before there is any government? a) No. Since mankind was given the earth in common, there cannot be a right to private property before there is any government. b) No. The law of nature explicitly prohibits private property. c) Yes. If someone mixes his labor with something then he can claim it as his property, at least where there is enough and as good left for others. d) Yes. Mixing one s labor with something is sufficient for claiming ownership in it. e) Yes. According to the law of nature, every person owns a piece of land privately simply in virtue of being alive. LECTURE 8: John Locke: individual Rights and Majority Rule Locke s two big ideas: Private Property (last lecture) Locke claims property can be defined w/o consent, before law and government some on the scene to define property Consent Legitimate government is founded on consent
What can a legitimate gov t., founded on consent, do according to Locke. The state of nature is that condition that we decide to leave, and that gives rise to consent. That gives rise to government. But, why leave that state? Locke: There are inconveniences: Everyone can enforce the law of nature is the executor (enforcer) not nature. If someone violates the law of nature, he is an aggressor and you can punish him. There are no gradations of punishment, and everyone is the judge of their own case you can kill any aggressor (a murderer, any thief). So many will overshoot his rights and this will lead to insecurity in the state of nature. How do you escape the state of nature? You consent to give up the enforcement power, and to create a government or community where there will be a legislature to make laws, and everybody who enters agrees to abide by whatever the majority decides. What can the majority decide, given that Locke s unalienable rights (life, liberty and property) do not go away when people decide to join a civil society? How limited is the government created by consent? It s limited by the obligation on the part of the majority to respect and to enforce the fundamental, natural rights of the citizens. Taxation of Bill Gates or Michael Jordan Locke: The supreme power cannot take from any man any part of his property without his own consent.
Here s what s illusive. On the one hand, Locke says the gov t. can t take your property w/o your consent. On the other, what counts as property is not natural but conventional (defined by government). So, Locke really means is property is natural in one sense and conventional in another. There is a fundamental, natural right that there be property, that the institution of property exist, and it be respected. So an arbitrary taking of property would be a violation of nature. But, it s a further question, what counts as property (how it s defined) and what counts as taking property. That s up to the gov t., and that s the conventional aspect of property. So, the government is not all that limited. It s not what we consent to that limits gov t., but what we, ourselves, lack the power to give away, that limits gov t. (our lives, our property). Bottom Line: It s not your personal consent, but the consent of the majority, which you consented to govern you would you emerge from the state of nature to join society. Further, it s the picking out of individuals the arbitrary taking for army or taxation, v.s. having a general law, such that the law is non-arbitrary, it doesn t really amount to an invasion of people s basic rights.