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• Grotius, Locke, and Property
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Grotius, Locke, and Property

Richard Tuck

• Jesus College, Cambridge

“The Recovery and Repudiation of Grotius.” In Natural Rights Theories: Their Origin and Development. Cambridge University Press: Cambridge, 1979, pp. 156–173.

Natural rights theories could be developed in either a conservative or a radical political direction. Thus, Hugo Grotius had invoked the “principle of interpretative charity” to defend the political resistance and common ownership property claims in some extreme circumstance to preserve human life. (This principle implied inalienable rights: Logically, free men were able in the state of nature to renounce all their natural rights to survival or to freedom, but charity requires us to assume that they have not done so. Our ancestors, being rational, could not have wished to leave us completely bereft of our rights through forfeiting theirs.

During the English civil war of the mid-1600s the puritan radicals had exploited this principle to argue for inalienable individual rights against government. After the Restoration of the monarchy following 1660, more conservative theorists such as Matthew Hale and Richard Cumberland sought to defuse the radical possibilities concerning resistance and property of interpretative charity. These Restoration conservatives developed less radical grounding of property rights and obligation on the basis of Grotius’s theory of property. Ingeniously, John Locke, likewise avoiding the principle of interpretative charity, was able to turn the Grotian arguments of Hale and Cumberland in a more radical, liberal direction in order to challenge political absolutism.

Samuel Pufendorf in his 1672 work De Jure Naturae et Gentium altered his former adherence to Grotius’s theory of property and obligation. He went beyond Grotius’s prudential basis of legal obligation (fear of the lawgiver’s punishment) by stressing the need of a legitimate lawgiver who could rightfully obligate man’s conscience. Pufendorf also attacked Grotius’s account of the primary or original natural rights to property in the state of nature and substituted his “correlative thesis” of rights: A person cannot assert an exclusive “right” to possessions unless others give their express or tacit consent. Pufendorf stressed that mankind’s general agreement in order to secure social utility conferred rights; no prior “rights” could be pleaded against this necessary original agreement. This view could support authoritarian governments.

In Restoration England, Hale, Cumberland, and Locke sought to rehabilitate Grotius’s theory of property. Against Hobbes and Selden, the Restoration authors sought to prove that property rights existed in the state of nature and antedated any alleged need for a formal contract of all commoners.

In the 1660’s Matthew Hale’s Treatise of the Nature of Lawes in Generall attempted to synthesize Selden’s prudential theory of obligation and Grotius’s theory of property. With Grotius, Hale agreed that even in the state of nature man would need exclusive rights to private property.

In 1672 Richard Cumberland’s De Legibus Naturae Disquisitio Philosophica also supplied a Grotian account of property and law of nature. The law of nature would require private property since it requires those necessary institutions to sustain man as a social being and to maximize his utility. He also used Selden’s prudential account for the obligatory force of such a law of nature. But Cumberland has God, the lawgiver, only gradually promulgating his binding laws to man as man slowly discerns that the promotion of the general social good through property also promotes his individual egoistic good. God’s obligatory edict to maximize the general utility enjoins all men to respect private property.

Locke employed these Grotian private property arguments to support a far more radical political philosophy. Locke’s theory of obligation in the state of nature is loose since he avoids specifying how and when men perceive this obligation. More definite is his theory of property, which, at the end of the 1670’s, resembled the English post-Restoration Grotians. Collaborating with his friend James Tyrrell in Patriarcha non Monarcha (1681), Locke justified exclusive private property as the necessary means for man to fulfill his divinely imposed obligation to preserve himself and his species. Every man will rationally agree (expressly or tacitly) to abstain from violating another’s property in order to secure personal and social utility. An explicit contract of man in the state of nature to create property would be an absurd and impossible requirement that would thwart God’s law to form life-sustaining property.

Locke went beyond the conservative Cumberland who sought to justify the existing distribution of property and political power. Locke and Tyrrell gave a more radical twist to the Grotian theory of property. They held that the right to property, even as defined by governmental law, “cannot exclude the natural right every man hath to his own preservation and the means thereof. . . .” In extreme need the industrious poor were entitled, by the same natural law of God which ordained property, to take “the superfluous necessities of life” from the more fortunate. God established property to sustain human life, and men in each age must consent to property distributions only if they fulfill their natural function. Locke also undercut government absolutism by denying the morality of agreeing to the sovereignty of a regime which violated the just purposes of civil government.