Despite this hortatory language, the federal courts have far too often failed to protect property rights. The Kelo v. City of New London decision is but one example; in that case, the United States Supreme Court essentially held that the government may take an individual's property and give it to another individual so long as the government believes that tax revenue might increase as a result. The Kelo decision led many states to enact responses.
Some, including Michigan's Proposal 4, do a good job at preventing physical takings abuse, while others do not. Even where property owners are protected against physical takings abuse, however, almost all property owners are still vulnerable to regulatory takings abuse. Regulatory takings are more insidious than physical takings. With physical takings, the owner receives "just compensation" for the taken land.
The extent to which there can ever be "just compensation" in a forced sale is a question for another day. But with regulatory takings, the property owner almost never receives any compensation.
The federal courts have held that the Fifth Amendment only requires a property owner to be compensated when regulation destroys almost all of a property's economic value. If some value remains, however, the state generally does not have to pay. But as Locke noted, only a proportional tax is fair and appropriate. Over the coming weeks, months and years, we will endeavor to highlight the abuses and absurdities currently distorting our property rights.
Clearly multiple actions are needed in order to achieve reform. One of the methods of effectuating change must be to re-examine first principles and ensure that policymakers and the public understand how far we have strayed from these principles.
This country is rooted in Lockean ideas, but far too often embraces Hobbes' ideology, thereby inviting the authoritarianism and tyranny that come with it. Box mcpp mackinac. Previous Section Next Section. Contents Download PDF. Where's the brownfield? Private property rights under attack in Michigan Measuring Oregon's property rights law DEQ permit denial sets dangerous precedent 'Smart growth' is neither Post of environmental ombudsman vetoed DEQ ruling threatens retirees' dream 'Hobbes vs.
Locke': The battle continues Ending a regulatory excess in Michigan? God created human beings who are capable of having property rights with respect to one another on the basis of owning their labor.
Another point of contestation has to do with the extent to which Locke thought natural law could, in fact, be known by reason. In the Essay Concerning Human Understanding , Locke defends a theory of moral knowledge that negates the possibility of innate ideas Essay Book 1 and claims that morality is capable of demonstration in the same way that Mathematics is Essay 3.
Yet nowhere in any of his works does Locke make a full deduction of natural law from first premises. More than that, Locke at times seems to appeal to innate ideas in the Second Treatise 2. Strauss infers from this that the contradictions exist to show the attentive reader that Locke does not really believe in natural law at all.
Laslett, more conservatively, simply says that Locke the philosopher and Locke the political writer should be kept very separate. Many scholars reject this position. That no one has deduced all of natural law from first principles does not mean that none of it has been deduced.
The supposedly contradictory passages in the Two Treatises are far from decisive. While it is true that Locke does not provide a deduction in the Essay , it is not clear that he was trying to. Section 4. Nonetheless, it must be admitted that Locke did not treat the topic of natural law as systematically as one might like. Attempts to work out his theory in more detail with respect to its ground and its content must try to reconstruct it from scattered passages in many different texts.
Unless these positions are maintained, the voluntarist argues, God becomes superfluous to morality since both the content and the binding force of morality can be explained without reference to God. The intellectualist replies that this understanding makes morality arbitrary and fails to explain why we have an obligation to obey God. With respect to the grounds and content of natural law, Locke is not completely clear.
On the one hand, there are many instances where he makes statements that sound voluntarist to the effect that law requires a legislator with authority Essay 1. Locke also repeatedly insists in the Essays on the Law of Nature that created beings have an obligation to obey their creator Political Essays — On the other hand there are statements that seem to imply an external moral standard to which God must conform Two Treatises 2.
Locke clearly wants to avoid the implication that the content of natural law is arbitrary. Several solutions have been proposed. One solution suggested by Herzog makes Locke an intellectualist by grounding our obligation to obey God on a prior duty of gratitude that exists independent of God.
A second option, suggested by Simmons , is simply to take Locke as a voluntarist since that is where the preponderance of his statements point. A third option, suggested by Tuckness and implied by Grant and affirmed by Israelson , is to treat the question of voluntarism as having two different parts, grounds and content. With respect to content, divine reason and human reason must be sufficiently analogous that human beings can reason about what God likely wills. Others, such as Dunn and Stanton , take Locke to be of only limited relevance to contemporary politics precisely because so many of his arguments depend on religious assumptions that are no longer widely shared.
At times, he claims, Locke presents this principle in rule-consequentialist terms: it is the principle we use to determine the more specific rights and duties that all have. At other times, Locke hints at a more Kantian justification that emphasizes the impropriety of treating our equals as if they were mere means to our ends. With respect to the specific content of natural law, Locke never provides a comprehensive statement of what it requires.
In the Two Treatises , Locke frequently states that the fundamental law of nature is that as much as possible mankind is to be preserved. Simmons argues that in Two Treatises 2. Libertarian interpreters of Locke tend to downplay duties of type 1 and 2. Locke presents a more extensive list in his earlier, and unpublished in his lifetime, Essays on the Law of Nature.
Interestingly, Locke here includes praise and honor of the deity as required by natural law as well as what we might call good character qualities.
At first glance it seems quite simple. On this account the state of nature is distinct from political society, where a legitimate government exists, and from a state of war where men fail to abide by the law of reason. Simmons presents an important challenge to this view. Simmons points out that the above statement is worded as a sufficient rather than necessary condition.
Two individuals might be able, in the state of nature, to authorize a third to settle disputes between them without leaving the state of nature, since the third party would not have, for example, the power to legislate for the public good.
Simmons also claims that other interpretations often fail to account for the fact that there are some people who live in states with legitimate governments who are nonetheless in the state of nature: visiting aliens Two Treatises 2. He claims that the state of nature is a relational concept describing a particular set of moral relations that exist between particular people, rather than a description of a particular geographical territory where there is no government with effective control.
The state of nature is just the way of describing the moral rights and responsibilities that exist between people who have not consented to the adjudication of their disputes by the same legitimate government.
The groups just mentioned either have not or cannot give consent, so they remain in the state of nature. Thus A may be in the state of nature with respect to B, but not with C. According to Simmons, since the state of nature is a moral account, it is compatible with a wide variety of social accounts without contradiction. If we know only that a group of people are in a state of nature, we know only the rights and responsibilities they have toward one another; we know nothing about whether they are rich or poor, peaceful or warlike.
Instead, he argued that there are and have been people in the state of nature Two Treatises 2. It seems important to him that at least some governments have actually been formed in the way he suggests. How much it matters whether they have been or not will be discussed below under the topic of consent, since the central question is whether a good government can be legitimate even if it does not have the actual consent of the people who live under it; hypothetical contract and actual contract theories will tend to answer this question differently.
There are important debates over what exactly Locke was trying to accomplish with his theory. One interpretation, advanced by C. Macpherson , sees Locke as a defender of unrestricted capitalist accumulation. Macpherson claims that as the argument progresses, each of these restrictions is transcended.
The spoilage restriction ceases to be a meaningful restriction with the invention of money because value can be stored in a medium that does not decay 2.
The sufficiency restriction is transcended because the creation of private property so increases productivity that even those who no longer have the opportunity to acquire land will have more opportunity to acquire what is necessary for life 2. The third restriction, Macpherson argues, was not one Locke actually held at all. Locke, according to Macpherson, thus clearly recognized that labor can be alienated. He argues that its coherence depends upon the assumption of differential rationality between capitalists and wage-laborers and on the division of society into distinct classes.
Because Locke was bound by these constraints, we are to understand him as including only property owners as voting members of society. Alan Ryan argued that since property for Locke includes life and liberty as well as estate Two Treatises 2.
While this duty is consistent with requiring the poor to work for low wages, it does undermine the claim that those who have wealth have no social duties to others. Previous accounts had focused on the claim that since persons own their own labor, when they mix their labor with that which is unowned it becomes their property.
Robert Nozick criticized this argument with his famous example of mixing tomato juice one rightfully owns with the sea. When we mix what we own with what we do not, why should we think we gain property instead of losing it? Human beings are created in the image of God and share with God, though to a much lesser extent, the ability to shape and mold the physical environment in accordance with a rational pattern or plan.
Only creating generates an absolute property right, and only God can create, but making is analogous to creating and creates an analogous, though weaker, right. Since Locke begins with the assumption that the world is owned by all, individual property is only justified if it can be shown that no one is made worse off by the appropriation. Where this condition is not met, those who are denied access to the good do have a legitimate objection to appropriation. Once land became scarce, property could only be legitimated by the creation of political society.
Waldron claims that, contrary to Macpherson , Tully , and others, Locke did not recognize a sufficiency condition at all. Waldron takes Locke to be making a descriptive statement, not a normative one, about the conditions that initially existed. Waldron thinks that the condition would lead Locke to the absurd conclusion that in circumstances of scarcity everyone must starve to death since no one would be able to obtain universal consent and any appropriation would make others worse off.
In particular, it is the only way Locke can be thought to have provided some solution to the fact that the consent of all is needed to justify appropriation in the state of nature. If others are not harmed, they have no grounds to object and can be thought to consent, whereas if they are harmed, it is implausible to think of them as consenting. Sreenivasan does depart from Tully in some important respects.
The disadvantage of this interpretation, as Sreenivasan admits, is that it saddles Locke with a flawed argument. Those who merely have the opportunity to labor for others at subsistence wages no longer have the liberty that individuals had before scarcity to benefit from the full surplus of value they create. Moreover, poor laborers no longer enjoy equality of access to the materials from which products can be made.
Simmons presents a still different synthesis. He sides with Waldron and against Tully and Sreenivasan in rejecting the workmanship model. Locke thinks we have property in our own persons even though we do not make or create ourselves.
Simmons claims that while Locke did believe that God had rights as creator, human beings have a different limited right as trustees , not as makers. According to the former argument, at least some property rights can be justified by showing that a scheme allowing appropriation of property without consent has beneficial consequences for the preservation of mankind.
This argument is overdetermined, according to Simmons, in that it can be interpreted either theologically or as a simple rule-consequentialist argument. Like Sreenivasan, Simmons sees this as flowing from a prior right of people to secure their subsistence, but Simmons also adds a prior right to self-government. Labor can generate claims to private property because private property makes individuals more independent and able to direct their own actions.
Some authors have suggested that Locke may have had an additional concern in mind in writing the chapter on property. David Armitage even argues that there is evidence that Locke was actively involved in revising the Fundamental Constitutions of Carolina at the same time he was drafting the chapter on property for the Second Treatise. A final question concerns the status of those property rights acquired in the state of nature after civil society has come into being.
It seems clear that at the very least Locke allows taxation to take place by the consent of the majority rather than requiring unanimous consent 2. Nozick takes Locke to be a libertarian, with the government having no right to take property to use for the common good without the consent of the property owner. On his interpretation, the majority may only tax at the rate needed to allow the government to successfully protect property rights.
At the other extreme, Tully thinks that, by the time government is formed, land is already scarce and so the initial holdings of the state of nature are no longer valid and thus are no constraint on governmental action. His analysis begins with individuals in a state of nature where they are not subject to a common legitimate authority with the power to legislate or adjudicate disputes. From this natural state of freedom and independence, Locke stresses individual consent as the mechanism by which political societies are created and individuals join those societies.
While there are of course some general obligations and rights that all people have from the law of nature, special obligations come about only when we voluntarily undertake them. Locke clearly states that one can only become a full member of society by an act of express consent Two Treatises 2. Simply by walking along the highways of a country a person gives tacit consent to the government and agrees to obey it while living in its territory.
This, Locke thinks, explains why resident aliens have an obligation to obey the laws of the state where they reside, though only while they live there. Inheriting property creates an even stronger bond, since the original owner of the property permanently put the property under the jurisdiction of the commonwealth.
Children, when they accept the property of their parents, consent to the jurisdiction of the commonwealth over that property Two Treatises 2. There is debate over whether the inheritance of property should be regarded as tacit or express consent.
On one interpretation, by accepting the property, Locke thinks a person becomes a full member of society, which implies that he must regard this as an act of express consent.
On the other interpretation, Locke recognized that people inheriting property did not in the process of doing so make any explicit declaration about their political obligation.
However this debate is resolved, there will be in any current or previously existing society many people who have never given express consent, and thus some version of tacit consent seems needed to explain how governments could still be legitimate. It is one thing, he argues, for a person to consent by actions rather than words; it is quite another to claim a person has consented without being aware that they have done so. To require a person to leave behind all of their property and emigrate in order to avoid giving tacit consent is to create a situation where continued residence is not a free and voluntary choice.
Hannah Pitkin takes a very different approach. Against Hobbes, Locke maintained the impossibility of renouncing one's natural rights of subjects to life, liberty, and estate in the process of creating sovereign power. Instead, a ruler who systematically violates human rights breeches the bond of trust that authorizes his office. Locke thus insists that no one is obligated to obey the commands of an illegitimate government. If the magistrate attempts to coerce their obedience, members of civil society may legitimately use force against him, just as they would in the case of robbery or assault, since they retain control of their rights individually and together.
Jean-Jacques Rousseau — extended the idea of popular sovereignty by means of an innovative marriage between Lockean and Hobbesian insights. Sovereignty for Rousseau cannot be exercised legitimately by any authority external to the body of citizens.
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