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Is There a Natural Right to Private Property?

Updated on June 29, 2014

Natural Rights and Private Property

The classical social-contractarian argument that there is a natural right to private property is in John Locke's Second Treatise of Government. Locke's theory is social-contractarian: this is not the only theory that yields a right to private property; and not all contractarian theories can establish this right. The relevance of Locke's text has to do with the fact that the American system of government has the Lockean-Jeffersonian foundation. Proponents of the American system may raise the claim that this is ultimately the only legitimate political system. The basis of government on "consent of the governed" is not postulated dogmatically or propagated ideologically: it is supposed to be entailed by the correct theory of justice, which is presumed to be social-contractarian. It is crucial, then, to be acquainted with Lockean social-contract theory but most people are not.

Social contract claims did not fare well in classical antiquity. In Platonic dialogues, this view is considered ill-conceived and serving simply as an ideological and partisan view advanced by the hoi polloi - those who have no higher contributions to make to the common life besides their bodies for the army. Consent of the governed is not considered relevant to good governance insofar as the majority of people are considered to be dominated by ignorance and to be prey to the "lower" desires of the body (which are desires for money, power and the meretricious pleasures such media can procure.) On the other hand, the higher human natures cannot possibly not consent to what is right (which they have direct access to, being knowledgeable): so, in their case, an appeal to consent is superfluous. So, consent can be either ill-conceived (in the case of the ignorant who cannot consent to the right things) or superfluous (in the case of the incorruptible higher natures whose knowledge directs them automatically to consent to the right laws.)

The Stoics and Christianity leveled the field, by making the case that rough equality prevails among all human beings because, no matter how unqualified in other respects, all people have the minimal capacities needed for cultivating moral conduct. The road was paved to views like the social-contractarian, which are premised on the principle that there is formal equality among all people - encapsulated in the famous phrase "all men are created equal" of the Declaration of Independence, in which reference to creation is rhetorical as it does not add anything to the theoretical content of the principle. It is within this theoretical framework that private property is to be defended as a right. Rights are moral claims. The statement itself "all men are ... equal" is not a factual claim but a normative one. It is like a sentence with "should" in it and not like a sentence with "is" in it. To prove it, roughly, one would have to have at least one other normative or prescriptive premise in the argument. One could also lay it down as a postulate and claim that it is "self-evident", thus appealing to moral intuitions to justify the principle. This seems to be, at least the rhetorical strategy, of the Declaration of Independence. Nevertheless, it is far from self-evident to the student of political thought that this is a valid principle. Alternatively, the principle itself can be defended and buttressed within a theory - and this brings us back to the social-contractarian theories.

Social contract theories present certain assumptions about human nature. It is not surprising that such theories envision human nature to be packaged, so to speak, in insular individual entities; the classical alternative of communitarianism has different consequences for how, if at all, private property is to be defended. The field is leveled so that the gifted and the ordinary, the excellent and the defective, are equal in some sense that is morally relevant: this is because, if all are to have equal moral claims - equal rights - it is first to be shown how a foundation of equality obtains. The excellent violin player has a superior moral claim to the best violin. Suppose that someone else obtains the best violin by some other (not the meritocratic) system of distribution: it could be lottery (which is the pure democratic mechanism); it could be brute force, perhaps expressed within an institutionalized framework of sports competition; it could be the market; and so on. It seems that those other distributive mechanisms are actually lacking in justification compared to the meritocratic one. Think of the meritocratic method as the classical Platonic. You can see why an alternative view may not be as "self-evident" as we take it to be today; it needs justification.

For starters, unlike violins, nourishment is something everyone needs. Suppose, however, that there is scarcity: once again, different distributive mechanisms vie as it is not clear how scarce goods are to be distributed so that the distribution is fair - in the sense that it can be defended with good arguments. Perhaps, the best violinist has a presumptive moral claim that puts her ahead of the less talented. This would suggest a moral theory of aesthetic perfectionism as the highest ranked moral value is, on this selection, related to artistic talent and perfection.

Contractarian theory establishes presumptive moral equality by turning to the "body" and not to the "mind". Talented or not, knowledgeable or not, the body with its basic and indispensable biophysical needs is a common denominator that establishes our shared humanity. This is not sufficient because it does not answer the question about distributive methods. The theory, at that point, turns to the grim facts about what happens in the absence of law and order: no distributive mechanism can establish itself with immediate success. If it is the brute force that is supposed to prevail - a number of weaklings can gang up and overpower the superior powerful hero. The thinker and the artist cannot force their claims either. The talented may not be recognized as everyone could take himself to be more talented than others or denigrate talent - which seems superfluous in the grim conditions of the jungle anyway. In the absence of any immediate insights as to how distribution should proceed, everyone has an equal right - moral claim - to everything he or she needs to survive. This sounds not like a moral principle but like a strategic or prudential recommendation. The "should" in "one should survive" is prudential; contrast this usage with the "should" in "you should not take life without good reason." Indeed, social contract theories were vulnerable on this issue until Immanuel Kant's complicated moral theory provided a moral-theoretical vehicle for contractarian claims. Pre-Kantian contractarian theories begin by stipulating the moral principle that everyone, in the absence of organized society, has an absolute right to whatever he or she needs to survive. Moreover, this claim is naturalized in the sense that humanity is presumed to have emerged from a primitive state in which law and order were indeed absent. At any rate, this theoretical device - called "the state of nature" - focuses our thinking. This view is vulnerable to criticism on the grounds that human beings are "communal animals", as Aristotle put it; the contractarian theories' state of nature comes across as unnatural. On the other hand, the theoretical fiction of a state of nature, in which everyone exists as an insular and self-preoccupied individual bent on survival, smuggles into the theory another famous modern principle: the primacy of individualism.

The interesting thing is that, as it stands in its bare beginnings, contractarian theory cannot furnish a natural right to private property. This is why the brilliant Thomas Hobbes, who penned an elaborate and sophisticated contractarian theory, could not manage to derive a right to property from the fundamental natural right to everything one needs to survive. Assume that x has such a moral claim or natural right - to everything x needs to survive. Now assume that x declares what he needs to be his private property. Take a random person y, any one, other than x. If y also needs what x has, then y also has the same natural right to it as x has. So, both x and y have the same basis for calling the stuff they need their own respective private properties. Call this vital stuff z. Make z to be indispensable: without it x, or y, perishes in the jungle. Now, both x and y have an equal natural right to z. If there is a natural right to property, then both x and y have an equal moral claim to call z their property. So, if there is a right to property, z is the property of x and the property of y. This, however, is absurd! By definition, "property" implies exclusive right. So, x can exclude y; but also y can exclude x. If x can be excluded, he has no property in z! (The same can be said about y, of course.) So, x both does and does not have property z. This is, again, logically absurd. What brought us to this absurdity? The assumption that a moral claim or natural right to property can be proclaimed is the culprit. So, no such natural right can exist.

We can then appreciate even more the step John Locke took toward inserting into contractarian theory a natural right to private property.

Right to Private Property

Is there a right to have private property under any circumstances and regardless of what happens to those excluded from ownership?

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John Locke
John Locke

John Locke and the Right to Property

After he demolished the claims to the divine rights of royals, John Locke turned his attention to a full formulation of a contractarian theory in his Second Treatise of Government. Students of political philosophy learn that Locke characteristically succeeded, or at least claimed, that the belleaguered denizens of the state of nature have moral duties in addition to the fundamental natural right to self-preservation. To be sure, a fundamental moral duty to life-preservation must be postulated if social contract theory is to be successful. The right to everything one needs for the sake of self-preservation is grounded on the right to self-preservation but this right, in its turn, seems to require a natural self-regarding moral obligation toward oneself - and this is the duty one has to preserve himself or herself. Locke, however, made the case that other moral duties - like those we associate with organized society - are operative in the state of nature. This lesens the urgency for the individuals in the state of nature to exrticate themselves from the dismal conditions of the jungle. If the state of nature can be ameliorated too much, one may question the need to enter into a social contract at all. The social contract is presumed to be desired, and consented to by all reasonable people, because life in the state of nature is, in Hobbes' memorable phrase, "nasty, brutish, and short." The views that take a more benign view of nature tend to the political left while those that emphasize the severity of the difficulties besetting human beings in the state of nature move toward the right of the theories of social contract. Locke's theory is somewhere in the middle. Even though he asserts that partial agreements, and discharging of moral obligations toward others, operate in the state of nature - and such operations ameliorate the state of nature itself - still, the prospects for a stable and peaceful life are absent. It is noticeable that the arguments for establishing that there are other-regarding moral duties in the state of nature are not sufficient to prove that there is a moral duty to respect others' possessions. A case is needed for the existence of a natural right to property to accompany the fundamental right to self-preservation. As we saw above, the right to possession of anything one needs is presumptive and follows from the fundamental right to self-preservation. The problem is that such individual rights cancel each other out when it comes to claiming exclusive possession (which is property.) Locke turns to the natural grounds of things to discover, presumably, a natural right to private property.

Locke begins with the canonical admission that everything is the property of God. Whether Locke himself believed this or not is a matter of biographical interest. This premise is inert when all is said and done; clearly, a further case is needed to ground some presumed transmission from divine possession to individual possession or private property. Locke has to make such a case, and he does. The history of early Christian communities not only offers no support for private property but contradicts the claim that quest for property is morally permissible: early Christian communities were communal, sharing property. The moral teachings of the New Testament admonish against accumulating property or those infamous earthly goods of Mammon, which are consumed by moth and fire. The dispossessed and disenfranchised beggar enters the Kingdom of Heaven first while the rich cannot make it through unless a camel can pass through the eye of a needle. The Catholic Church contravened those teachings and declared requests that the church embrace apostolic poverty heretical. Still, Locke needs a secular argument and he produces one even if it is interlaced within a pseudo-theological rhetorical garb.

The crucial premise of Locke's argument is that human beings own their labor. Karl Marx praised this insight although, of course, he complained that Locke fell short of drawing certain irresistible conclusions that follow from this. In the pseudo-theological mode of Locke's Treatise, God expressly handed over possessive rights to humans by decreeing that they own their labor.

Because a person x owns her labor, whatever she "mixes" her labor with becomes her own in the way private property items do. The "admixture" metaphor should not be exaggerated. I do not obtain private property over something I mix my labor with in organized society but this is not a problem for the theory since the reasons why I am enjoined from owning anything I work over have to do with preestablished property rights by others. It is understandable that the orderly possession of equal rights dictates that anyone's right stops in its exercise where someone else's equal right would be infringed. Still, we have to dig deeper to understand in what sense "mixing" of labor bestows ownership over a natural object. Is it something like mixing paint in, so that the thing worked-over becomes owned in the same way that something becomes blue by being painted (mixed with) blue?

The claim that I own something, if not restrictions apply, by expending my labor over its acquisition has an intuitive appeal to it. Notice that one implication is that private property not gained by work carries no right over it! If the idle rich are truly idle with respect to what they owe, they do not have a right to property over their possessions, it seems. There is catch, however, which is indicative of how this initial view can prove more expansive, and more forgiving, than it seems at first. If I have private property over something that works, then, even if I don't work but have this other thing do the work - do I owe what emerges by right? Locke permits this. Owenership is presumed transitive, and this seems fine: if x owns y and y owns z, then x owns z. But it is not clear that transitivity applies in the case of that other relation - the relation between labor and rightful possession: if x has worked for generation or acquisition of y and y has worked for generation or acquisition of z, then x has worked for generation or acquisition of z. This sounds patently wrong! Some things that work while their rightful owners don't are money (through interest), land, and (in the old times) chattels and slaves.

Locke disallows that there is a right to ownership over goods that may spoil while other are starving. The invention of money, however, cancels this restriction. Money does not spoil. It seems that technological innovation also cancels what came across at first as a principle of other-regarding social charity: if there is refrigeration to prevent spoiling, then, regardless of whether others are starving here and now, the right to private property is solidified. Some have claimed Locke as an ancestor of the Libertarian persuasion and this may not be far-fetched.

A problem with Locke's argument for private property seems to be that he smuggles into "ownership" of labor the same kind of ownership he is trying to establish for private property. How do we know that the way we owe our labor is itself self-regarding and strictly exclusive? Isn't this contentious - something that needs to be argued for? Again, Locke must have thought that the overall individualistic character of certain social contract theories have already given us, non-questionbeggingly, that ownership of labor is exclusive of others. Communal work can only be voluntary, in other wods - or enforced as a punished. The community does not have a natural right to our labor. A criticism of the theory, at this point, is that we are getting out, magic-like, what we smuggled in: the state of nature is constructed in such a way that individuals are presumed as entirely self-regarding atoms. By appealing to the theory of the state of nature, we presumably derive conclusions to the effec that individualism is a matter of right. Thus, we have: 1) the right way to go about drawing normative conclusions is by studying the state of nature framework; 2) the state of nature view is itself constructed so that certain normative conclusions can indeed be drawn from it. 3) We appeal to the state of nature fiction to draw the normative conclusions packed in it. Do you spot a certain vicious circularity in this? A contemporary version of a contractarian theory, John Rawls' A Theory of Justice, is not immune to this problem.

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