 Welcome to George H. Smith's Excursions into Libertarian Thon, a production of Libertarianism.org and the Cato Institute. John Locke on Property In On the Law of Nature and Nations, Samuel Pufendorf, one of the most influential modern philosophers of law, drew a crucial distinction between two possible meanings of a community of goods. The term community is taken either negatively or positively. In the former case, things are said 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. In the same sense, such things are said to be nobodies more in a negative than in a positive sense. That is, that they are not yet assigned to a particular person, not that they cannot be assigned to a particular person. They are, furthermore, called things that lie open to any and every person. But common things, by the second and positive meaning, differ from things owned, only in the respect that the latter belong to one person while the former belong to several in the same manner. The distinction drawn by Pufendorf and by Hugo Grotius before him, if in a less explicit manner, is fraught with momentous implications. If, before the advent of private property, the earth and its resources were common in a negative sense, then such resources were simply unowned and everyone had a right to use them for his or her own benefit. But if the earth and its resources were common in a positive sense, then we had a primitive condition of joint ownership, and that would have required the unanimous consent of all the owners before any individual could legitimately appropriate property for his or her own use. John Locke's position on the primitive condition of common dominion has engendered a fair amount of scholarly controversy. Locke, like every Christian philosopher before him, accepted as authoritative two key passages in the first chapter of Genesis, verses 26 and 28. Here is verse 26, revised standard version. Then God said, Let us make man in our image after our likeness, and let them have dominion over the fish of the sea, over the birds of the air, and over the cattle, and over the earth, and over every creeping thing that creeps on the earth. According to Sir Robert Filmer, Locke's target in the first triadus of government, the grant of dominion was bestowed on Adam as an individual. By virtue of that divine authorization, Adam became owner of the entire earth and its resources, after which, title passed from Adam to his eldest male heirs, and since ownership of land entails political dominion, according to Filmer, Adam was also appointed by God as absolute monarch over the entire world. A power that was passed to his rightful heirs, as determined by the principle of primogeniture. Locke had little trouble disposing of Filmer's tortuous arguments for the divine right of kings, which was a relatively modern doctrine. Earlier Christians had typically maintained that government is a divinely mandated institution, but had not gone so far as to claim that specific individuals were appointed by God to rule over others. Many Catholic philosophers during the high Middle Ages invoked some version of consent theory. However, that was precisely the position defended by Filmer and other proponents of the divine right of kings, and that position in turn became the foundation not only for modern absolutism, but also for the common claim of absolutists that king were the legitimate owners of all land in their kingdoms. Thus, when a king confiscated land from his subjects, or when he claimed absolute political sovereignty over inhabitants of that land, he was simply exercising his rights as a legitimate owner, an ownership originally bestowed by God on Adam. Although Filmer had died decades before Locke wrote his refutation, Filmer's tracks were printed around 1680 to buttress the absolutist claims of Charles II and the Stuart dynasty generally. This background helps explain the contemporary significance of Locke's first triatus, even though much of it may strike the modern reader as tedious and irrelevant. Locke was not the only individualist of his time to take on Filmer. Similar criticisms were written by Locke's friend James Terrell in Patriarcha non-monarcha and by Algernon Sidney in Discourses Concerning Government. The critiques by three leading individualists of the 17th century testified to Filmer's importance at the time. Contrary to Filmer, Locke maintained that the passages in Genesis should be understood as a grant of dominion, not to Adam in particular, but to mankind in general. He pointed out, for example, that Genesis says, let them have dominion, not him. But what exactly did that mean? Did Locke accept the negative or the positive view of common property as outlined by Pufendorf? Did he embrace the negative view of a community of goods, according to which the earth and its resources were originally unowned, and that every person had an equal right to use those unowned resources? Or did he believe that the earth and its resources were jointly owned in a positive sense by every person? Modern scholars have disagreed in their interpretations of Locke, which is understandable, given that Locke never expressly took a stand on the issue. The most reasonable interpretation, in my judgment, is that Locke agreed with Pufendorf's negative understanding of the commons before the advent of private property. This interpretation of Locke, according to which natural resources were originally unowned rather than jointly owned, was advanced by two early Lockeans. Jean-Babarak, 1674 to 1744, a French philosopher and a translator of Pufendorf, and Gershom Carmichael, 1672 to 1729, a seminal figure in the early Scottish Enlightenment who brought a Lockean perspective to bear in his commentaries on Pufendorf. Some modern Lockean scholars have also defended the negative interpretation. I especially recommend the detailed analysis by Martin Zelliger in the Liberal Politics of John Locke, Prager, 1968, and the treatment by Stephen Buckle in his superb book, Natural Law and the Theory of Property, Groteus to Hume. Buckle summarized Locke's position as follows. The world is given to mankind in common in such a way that it initially belongs to no one in particular, the original meaning of common identified by Groteus and termed negative community by Pufendorf. Locke insists that the world has been given in common in order to reject Filmer's doctrine that the world is the private property of Adam and his heirs. Since many readers of this volume may not be especially interested in a rather technical issue, namely the distinction between a negative and positive understanding of the primitive commons, I want to highlight the theoretical significance of this controversy. Suppose on the one hand that we accept the negative interpretation according to which natural resources were originally unowned. In that case, the justification of private property is not especially difficult, but suppose on the other hand that we accept the positive interpretation according to which natural resources were originally jointly owned. In that case, private property is quite difficult to justify since the private appropriation of natural resources would require the consent of all the commoners. Locke was undoubtedly aware of Pufendorf's distinction between positive and negative commons since he praised Pufendorf's work as the best book of its kind, and there are some important similarities between the two writers. Consider again this passage from Pufendorf's On the Law of Nature and Nations which I quoted in chapter 25. After explaining the negative commons to be a situation before the emergence of private property in which all things lay open to all men and belong no more to one than to another, Pufendorf continued, Since things are of no use to men unless at least their fruits may be appropriated and this is impossible if others can take what we have already by our own acts selected for our uses. It follows that the first convention between men was about these very concerns to the effect that whatever one of these things which were left open to all and of their fruits, a man had laid his hands upon with intent to turn it to his uses could not be taken from him by another. Although Locke agreed that natural resources would be useless unless they could be appropriated for private use, he disagreed with Pufendorf's emphasis on convention or consent as necessary to the establishment of private property. Indeed, in chapter 5 of the Second Triatus of Government of Property, Locke stated his intention to show how men come to have a property in several parts of which God gave to mankind in common and that without any express compact of all the commoners. The justification of private property, according to Locke, does not depend on the express consent of all the commoners. This position alone indicates that Locke's view of the original commons was negative, not positive. There are other indicators as well. Attentive readers may have noticed that Locke specifically excluded the express consent of the commoners as a necessary condition of private property. Both Grodius and Pufendorf had specified that the necessary consent may be either implied or express, so Locke's disagreement with his two predecessors may not have been so serious after all. Locke did assign some role for implied consent in his theory of property, but this is one of those matters that is too troublesome and technical to discuss here. For now, suffice it to say that Locke did not regard the consent of the commoners, whether express or implied, as essential to the moral justification of private property. This has been Excursions into Libertarian Thought, a production of Libertarianism.org and the Cato Institute. To learn more about Libertarian philosophy and history, visit www.libertarianism.org.