Liberty Matters

Michael Zuckert’s Concluding Thoughts


My colleagues seem to have signed off, but many issues remain worth discussing. So here come a few comments on the exchange as it is now pretty much at its end. Two large issues have dominated: Locke on property—what does he mean, how sound are his arguments?--and broader arguments about property and the nature of rights. I want to say a bit about both by looking first at some of the replies to my earlier comment.

Both Eric (entry 12) and Jan (entry 9) pick up on a theme from my initial reply to Eric. Both maintain, in effect, that property relations in Locke’s England cannot satisfy his own criteria for just acquisition and therefore for just current holdings. As Jan says, “The British landed gentry got their land by conquest and not by Locke-approved means.” Eric surmises that “Locke does not step back and ask whether the land holdings that actually exist in England in, say, 1689 are just in light of his theory of just property rights.” Locke, to be sure, does not address explicitly that question, i.e., he does not say what Eric and Jan say—that the property holdings of his day are unjust. I would add a parallel case where Locke also fails to explicitly address an issue where his doctrine has unsettling implications for political and economic life of his day. According to him, conquest cannot generate legitimate political authority, a doctrine unsettling to all European powers of the day, including Britain. I wish to reiterate my point that Locke’s silence on these points cannot be inadvertent, as Eric claims, for the context of his book is the debate with Filmer, in which the legitimacy of the property distribution of the modern world was precisely what was ultimately at stake. It is true, as Eric says, that the debate was explicitly over the means of initial acquisition, but Filmer made clear that the justice of current holdings was at stake in the debate: Only his account of an initial private property could legitimate current private property.

The challenge Locke faced was to develop an alternative theory that could validate the property regime of his own time. That was the very thing Filmer meant to put in play. Cagily, Filmer was counting on the propertied in England to support his argument for absolutism because it would provide stronger support for their property claims than the Whiggish contractarian arguments he was opposed to. Therefore, Locke could not have been unaware of or indifferent to the implications of his doctrine for property relations in his England. Yet it is true that he does not pause to examine whether the current property distribution is just on his own criteria, nor, even more, to denounce those holdings as unjust. In proceeding as he does, we must ask what could Locke be thinking that he does not pause to make the point Nozick makes: that the theory of acquisition may have very disruptive implications for the reigning property regime? (See Loren Lomasky’s “Libertarianism at Twin Harvard.”) [1] Here we must be speculative, for Locke does not explicitly address the issue of his own silences.

So if speculate we must, here goes. My speculation concerns the overall character of Locke’s argument. On property—and on quite a few other things—we should see Locke as making a two-stage argument. In the first place he means to show that the two large institutional arrangements of civilized society—private property and the state—are rational and just on the basis of a contractarian/natural rights-based argument that in its nature calls both into question initially. He shows that there is an argument that starts with an initial situation in which property is unowned (I am with those like Eric who argue that Locke means by “the earth belongs to mankind in common” that it is initially unowned, but ownable) and in which there is no political authority, i.e., a state of nature. He then tries to show that one can move form that state to one where private property and the state rightfully exist. That argument takes the form of a “history”—an idealized and fabulous history, as many of its critics have maintained over the years. That history is idealized in the sense that it shows what would happen if the actors understood their moral situation correctly and acted rationally in light of it. That argument is meant to show that the state and private property in general are just and beneficial to all who live in civilized society. Therefore, the argument is meant to show that it is rational for denizens of the civilized world to will these institutions as if they made the contract and underwent the history of property as Locke explained it in chapter five. He shows that the current property regime benefits all and that it would be irrational for anyone to will its destruction or severe disruption. Locke himself must recognize that the present arrangement, though falling short of strict justice on the basis of his own theory, is both more just and more beneficial to all and to the society as a whole than would be the project of starting all over again and insisting on strict justice according to his criteria of just acquisition. It is not rational for him to propose such a thing, and it is not rational for any of us to will such a thing. So, on the basis of asking the important political and philosophical question, “compared to what,” Locke can treat present property relations as just enough.However, once Locke has brought forward the true criteria of justice in property relations (and political construction) future actions should be governed by this standard, so far as he can win agreement to his criteria. That is to say, knowledge of the true character and justification of property has implications both looking backward and looking forward. In looking backward, Locke approaches Hume in validating a private property regime on the basis of social benefit, but in looking forward he keeps individual rights much more to the fore for reasons both of justice and of social benefit. (However, this last comment must be qualified by his statement at the end of chapter five on the power of the civil authorities to regulate property, but this takes us too far afield).
"And because the condition of Man, ... is a condition of Warre of every one against every one; in which case every one is governed by his own Reason; and there is nothing he can make use of, that may not be a help unto him, in preserving his life against his enemyes; It followeth, that in such a condition, every man has a Right to every thing; even to one anothers body."
To my mind the most interesting issue that has arisen in the discussion is the one debated between Eric and Jan about the basis of rights. On the whole I am on Eric’s side but I believe that Jan raises an important question and challenge when he asks: “Why are those feature of persons” that Eric appeals to in order to ground rights “morally significant”? Jan goes on to observe that “bad accounts or non-accounts … abound.” He has a point—as the many manifestoes on human rights demonstrate. He seeks an alternative, less mushy account, roughly of a Hobbesian sort. That his account does not work is clear from a claim he makes that is, I believe, incorrect. He identifies “the more fundamental question: Why should we think each other to be ‘owners’ of ourselves in the first place? (Hobbes’s answer is clear: because if we don’t, we’ll be facing an awful state-of-nature situation.).” That is, he agrees with Eric that self-ownership is a crucial piece of the argument but disagrees with Eric’s Lockean-Kantian-Nozickian way of speaking in terms of “morally significant features of persons.” He thinks he can get the necessary self-ownership claim on the basis of harder-nosed Hobbesian arguments. But contrary to what he says, Hobbes does not arrive at a doctrine of self-ownership and his doctrine of natural right forecloses him from doing so. According to Hobbes, we have a right of nature, which is a right to everything, including one another’s bodies. If others have a right to our bodies we are not self-owners, for ownership of self implies immunities that rule out Hobbes’s right of nature. So far as we recognize such immunities, they are not natural rights but conventional rights based on the law of nature (not really a law and not really natural as Hobbes tells us) or on the civil law. The absence of a doctrine of self-ownership is what leads Hobbes to deny a natural right of property. We have liberty to take what we need in the state of nature but no property right in the sense that others are obliged to respect our right to what we have taken and perhaps stored. There is no injustice in the state of nature because there is no mine and thine. Locke differs with Hobbes on more than the sovereign—he affirms a natural right that has the character of property and therefore can affirm the possibility of injustice in the state of nature.
As Eric maintains and as I agree, Locke affirms a natural right of property in part on the basis of self-ownership and affirms that on the basis of those morally significant features of persons. Jan is apparently unconvinced by Eric’s way of developing this theme, and were there world enough and time I would put forward an alternative account that perhaps he or others would find persuasive. In lieu of that I will mention my attempt to develop a Lockean theory of self-ownership on entirely nontheological grounds in my Natural Rights and the New Republicanism (1994), chapter nine. [2] Two comments about the argument I make there. First, I think Locke did have a nontheological argument in addition to the theological arguments he presented in two treatises. How the arguments relate is a fine question that I try to address in the introduction to Launching Liberalism. Second, the nontheological argument for self-ownership is developed from Locke’s treatment of self and person in the Essay on Human Understanding.
I regret that I have not had time to address Peter Vallentyne’s comments or many of the other issues raised by the discussion here. There seems to be enough material and disagreement to keep going for another year or two, I am sure. But like my colleagues, I have a few classes to teach and dissertations to read, so I too will sign off. Many thanks to Liberty Fund for pioneering yet another way to keep the discussion of important issues of liberty on the table.
[1] Loren E. Lomasky, "Libertarianism at twin Harvard," Social Philosophy and Policy 22 (1):178-199 (2005). Abstract at .
[2] Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton University Press, 1994). Chapter 9 "Locke and the Reformation of Natural Law of Property."