For centuries, John Locke has cast a long shadow over the political and social development of our society. Locke, perhaps more than anyone else, is responsible for our ideas about private property. Although few of us today would explicitly agree with all of his thoughts on the subject, his assumptions remain unyielding in our conception. But Locke’s assumptions are deeply flawed and must be reexamined — even if we only wish to save private property rights in the long run.
Like his counterparts, Locke was interested in how sovereign authority could be justified to all men. In the 17th century, this manifested in how governance could be justified from a “state of nature.” But philosophers were also interested in a more unusual and anachronistic problem of justification. As Christians, many European philosophers believed that the earth had been given to all of humanity as a universal gift, which implied its existence was, at least at first, entirely common property. However, as loyal subjects of monarchs and landed aristocrats, philosophers were curious about how this common property could become private and how it could stay that way.
Locke neatly outlines his unprecedented innovation to the problem in his Second Treatise of Government:
The earth, and all that is therein, is given to men for the support and comfort of their being. And tho’ all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man…
The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.
For Locke, the labor required to tend an orchard creates ownership over the fruit, the trees, and even the field itself. This combination of nature and individual labor is what creates private property in the first place.
Locke, however, needed to not only justify the idea of private property but also the idea of passing it down by estate. To do this, Locke asserts that inheritance is nothing more than a series of social and political customs designed to maintain stability. This entails that the first application of labor either fundamentally alters all common property or that some private property rights are not rights at all but simply social mores.
Many thinkers rightly criticized these assumptions. Karl Marx attacked Locke for not realizing that his theory meant only workers — not aristocrats — owned the fruits of their labor. Pierre-Joseph Proudhon called all such private property theft, rejecting the idea that labor could so fundamentally alter the nature of what was commonly owned. Even Thomas Jefferson (in his usufruct letters) believed that the Lockean notion of property would lead to the abandonment of the commons over time and the creation of a non-noble landed class in free societies.
Out of all of these criticisms, the most unique was the rejection of the need for private property at all. For some philosophers, private property had always been nothing more than a notion cooked up for the benefit of elite property owners. These thinkers argue that the problems of scarcity and labor can be better understood with a theory of fair use.
Theories of Use
Theories of use, which is a category I’ve mostly created to talk about many different ideas that reject the need for property, can help us understand how Locke’s assumptions have been carried down through the ages, even when utterly detrimental. What follows is not an argument for any theory of use, but it will argue for them as charitably as possible. Doing so, I think, will help us understand how Lockean notions are entirely contingent.
Before we begin, allow me to address the reader directly — that’s you. For many, private property seems “natural.” This is almost certainly not true. If it were, Locke would have never needed to defend it in the first place. For the next few paragraphs, try to keep an open mind on the feasibility of alternative societies and not whether or not it would be your preference to live in one.
Any theory of fair use starts out facing the same problem as a theory of private property. That problem is scarcity. Both sets of theories hope to provide a neutral system of justification, a discursive algorithm if you will, to resolve issues arising from the persistence of scarce resources.
The problem goes something like this. Many things cannot be used or consumed by everyone at the same time. Not everyone, for example, can work the same orchard or eat the same apple. This problem of scarcity not only touches objects of consumption but also on many labor and organizational roles within society. If there is only one printing press, not everyone can be a printer (at least until someone makes more printing presses).
But a theory of fair use assumes that we do not need property to explain who gets to use what; we do not need to ask “Who ‘owns’ the orchard?” or “Who ‘owns’ the printing press?” to determine these things. Instead, such a theory would democratize the process, either formally or informally, by relying on already established moral norms and, when needed, by group consensus.
The operative assumption in a theory of fair use is that common “ownership” is the norm. Although such theories acknowledge that certain people have more reason to use things over others, the justification can only come from what the people deem to be fair in practice.
Just as we do not attempt to use property rights to adjudicate a dispute between toddlers fighting over alphabet blocks, we do not need to reference property rights to understand what sort of people should get to use the Large Hadron Collider in Switzerland. To invoke “ownership” here is nothing more than invoking a made-up concept that explains what we already understand, namely virtues like fairness, mutual respect, and relevant justification.
One might argue, in fact, that any theory of use is actually better at explaining moral facts: it can tell us why hoarding, for example, is equivalent to “stealing.” In this case, however, “stealing” would not be a violation of something called “private property” but only an inability to share — to seize something while someone is fairly using it or has poured their labor into it is merely selfish. Seizing something that someone (or a group of people) has been regularly using is unacceptable. It is no mystery to any of us about who is wrong when someone takes something under these conditions. We teach these principles to children before we ever teach them about property rights.
Still, not everything is as easily managed as a dispute between children. But do we really need an (allegedly) neutral matrix to decide who is right and wrong in such cases? It might be helpful, yes, but it is not proof that private property is some objective thing or a right. In a system of fair use where no property laws exist, claimants disputing over the use of some object would need to appeal to the community for arbitration. This is certainly more democratic, but it might also be better in many cases.
Since all property is common, any pesky neighbor who wants to erect an ugly fence for no good reason — a surprisingly common problem in our society — would likely be told to stand down if they had the gall to bring it before the community. Since there is no private property, every person has an obligation to use property well and with respect for everyone else, including future generations.
Someone might ask, “But without property, what is to stop someone from entering my house? Or using my toothbrush?” The simple answer is that any fair use theory must piggyback on what we already intuitively perceive about useable things: everything has a specific purpose or acceptable form of use. This purpose helps us understand how to define what ‘fair’ means in fair use. So just as misusing an object can never be justified by having an absolute right to it, it cannot also be justified merely by having a common claim to it either. Some things, like toothbrushes and personal spaces, are not created to be freely used by just anyone.
Toothbrushes, for instance, are made to be used by one person — this is an essential feature of many hygiene products. Therefore, violating its inherent nature isn’t a violation of some unspoken truth about the perennial necessity of property as much as it is a negation of what a toothbrush is supposed to do. Someone who breaks into houses will likely find themselves in trouble in fair use societies, either by laws that make breaking and entering into a private space illegal without reference to private property, or, if in an anarchist society, by collective response. The benefit of this is it also allows us to explain what is wrong with mansions with hundreds of unoccupied rooms. Not only is it selfish, but it also serves no real function.
More than anything else, fair use theories allow us to explain why non-scarce resources must be made available to everyone: there’s no reason to prevent anyone from accessing them. (Unless, of course, someone is attempting to horde something, which isn’t so much an exception to this rule as merely preventing its negation). When there’s enough food to eat, no one should go hungry; when there are enough rooms for everyone to live in, no one should be homeless.
So far, it seems such societies are at least within the realm of imagination. Obviously, in practice, it would be messier. This is no argument against its feasibility. Locke’s notion of private property is also far messier in practice. Notice here, however, that a theory of use is more than just feasible, it can also mirror many of the best parts of Locke’s notion. In a fair use theory, labor is a justification to be entitled to use something. Whoever puts in the time and energy to create something has a stronger claim to that thing than anyone else. In this, many fair use theories agree with Locke’s ideas about labor. Unlike Locke, however, we cannot say that whoever made something can always prevent someone else from using it, nor can they stop anyone from questioning why they made it in the first place.
No one can prevent someone else from using some idle yet productive thing for the sole reasons that they were the ones that created it, and they don’t want anyone else to use it. Such a claim to “ownership” would immediately invalidate their free access to non-scarce resources, most of which they likely paid no labor towards and would be dependent upon in this type of society (e.g., food, shelter, and even indispensable services like telecommunications, electricity, etc.). In this sense, a theory of use is able to incorporate Locke’s observation on labor’s relevance to the world while also creating a system where such relevance isn’t a complete negation of the initial assumption that all property is, indeed, common property.
None of the above is evidence that theories of fair use are intrinsically better. Neither does it suggest that such systems will work without a hitch. It only shows us that alternative societies have always been possible, and the Lockean formulation of private property has always been merely contingent.
What Competing Theories Help Us Understand
As opposed as these two types of theories are, in practice, they can also (mostly) be understood in terms of the other: a right of property is a right to the uninhibited use of something and the right to engage that use whenever and however one wants; a right to fair use is nothing more than a property right of the moment, for any truly justified usage precludes anyone else from laying claim to the item during the time of its use.
That does not, however, mean that all such theories are equally democratic or just. Some are more amenable to what we want to see in our society.
The similarities between these theories indubitably exist because both theories derive from similar assumptions. Both approaches distantly circle around some “form of life,” as Ludwig Wittgenstein would say, attempting to classify several disparate ways of human activity and organization into a categorical relation or rule. But some forms of classification are clearly better than others — not only when comparing property theories against fair use theories but also when comparing certain conceptions of property or fair use against alternative conceptions of the same type.
If we do, we’ll come to see Locke’s conception of private property just isn’t worth saving as it is written. The reason his conception has remained so persistent, even if only in bastardized form, is because it was first developed to justify the selfish impulse of a waning aristocracy in terms of Christian selflessness. Nothing is more potent than righteously justified selfishness. That’s why echoes of Locke have remained so persistent.
The advantage of a theory of fair use is that it attacks this selfishness head-on. That doesn’t necessarily mean that fair use theories are the only way to get rid of Locke. But it does mean that any worthwhile theory of property will require a thorough readjustment that also strives to meet this selfishness head-on.
If property rights are to continue being able to deliver utility to future societies, then we must reject the Lockean notion that labor is able to turn common property into private property forever. We must also reject the idea that private property allows uninhibited use. If private property is worth saving, then it will have to return to — as well as be kept it in consonance with — the assumption that all property is sourced from the commons, and, therefore, owes something to everyone.