Hugo Grotius: Property and consent

Political Theory

Volumn 29, Issue 4, 2001, Pages 537-555

  Salter, John ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0035535579     PISSN: 00905917     EISSN: None     Source Type: Journal    
DOI: 10.1177/0090591701029004004     Document Type: Review

References (75)

1. Richard Schlatter, Private Property, The History of an Idea (London: Allen & Unwin, 1951), 130.
2. Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, UK: Cambridge University Press, 1979), 61.
3. Ibid., 77.
4. Schlatter, Private Property, 145.
5. Ibid., 146.
6. Tuck, Natural Rights Theories, 161.
7. Hugo Grotius, De Jure Belli ac Pacis Libri Tres, vol. 2, trans. F. W. Kelsey (Oxford, UK: Clarendon, 1925), I.II.I.5.
8. Hugo Grotius, Mare Liberum (New York: Oxford University Press, 1916), 7.
9. Ibid., 24.
10. Ibid., 23.
11. Ibid., 24.
12. Ibid.
13. Grotius, De Jure Belli, II.II.II.1.
14. Ibid., I.II.1.5.
15. Ibid. Grotius also cites in footnote Seneca's similar example of the equestrian seats: 'The equestrian seats belong to all the Roman knights; nevertheless, in those places whichever one I have occupied is mine'.
16. Ibid.
17. Samuel Pufendorf, De Jure Naturae et gentium libri octo, vol. 2, trans. C. H. Oldfather and W. A. Oldfather (Oxford, UK: Clarendon, 1934), IV.IV.5.
18. Ibid., IV.IV.4.
19. Ibid., IV.IV.2 and IV.IV.9.
20. Thomas Horne, Property Rights and Poverty: Political Argument in Britain, 1605-34 (Chapel Hill: University of North Carolina Press, 1990), 12.
21. Karl Olivercrona, 'Appropriation in the State of Nature: Locke on the Origin of Property', Journal of the History of Ideas, vol. 35, no. 2 (1974), 213. However, Pufendorf's objection does not necessarily entail a denial that there may be good reasons why one person rather than another should acquire a right, nor even that it may be morally wrong to take something from its possessor even when it is not theirs by right. He does not think that first taking is one of those reasons, but he does say, in relation to the introduction of proprietorship, that it is 'improper' that a man who has contributed no labour to the production of something 'should have right to things equal to his by whose industry a thing had been raised or rendered fit for service'. Any property regime that did not take account of this could not establish peace among men, presumably because the sense of resentment felt by the industrious against the idle would generate conflict. But even in this case, where there appears to be some reason why such things should belong to some men rather than to others … the dominion of one group, involving, as it does, the exclusion of the rest, had to be confirmed at least by a tacit pact, which contained at the same time a tacit renunciation on the part of the rest. (Pufendorf, De Jure Naturae, IV.IV.6) So to have a moral claim to a thing is not the same as having a right to it. Pufendorf is merely using Grotius's distinction between an aptitude and a legal faculty: to be the worthy or fitting subject to receive something is not the same as being able to demand it by right.
22. Karl Olivercrona, 'Appropriation in the State of Nature: Locke on the Origin of Property', Journal of the History of Ideas, vol. 35, no. 2 (1974), 213. However, Pufendorf's objection does not necessarily entail a denial that there may be good reasons why one person rather than another should acquire a right, nor even that it may be morally wrong to take something from its possessor even when it is not theirs by right. He does not think that first taking is one of those reasons, but he does say, in relation to the introduction of proprietorship, that it is 'improper' that a man who has contributed no labour to the production of something 'should have right to things equal to his by whose industry a thing had been raised or rendered fit for service'. Any property regime that did not take account of this could not establish peace among men, presumably because the sense of resentment felt by the industrious against the idle would generate conflict. But even in this case, where there appears to be some reason why such things should belong to some men rather than to others … the dominion of one group, involving, as it does, the exclusion of the rest, had to be confirmed at least by a tacit pact, which contained at the same time a tacit renunciation on the part of the rest. (Pufendorf, De Jure Naturae, IV.IV.6) So to have a moral claim to a thing is not the same as having a right to it. Pufendorf is merely using Grotius's distinction between an aptitude and a legal faculty: to be the worthy or fitting subject to receive something is not the same as being able to demand it by right.
23. Grotius, De Jure Belli, I.I.VII and I.I.VIII.1.
24. Hillel Steiner, An Essay on Rights (Oxford, UK: Blackwell, 1994), 75.
25. Grotius, De Jure Belli, II.II.II.4.
26. Ibid., II.II.III.
27. Ibid., II.II.VI.
28. Ibid., II.II.4.
29. Ibid., IV.IV.6.
30. Pufendorf, De Jure Naturae, IV.IV.5 (emphasis added).
31. Ibid., IV.IV.5.
32. There is room for doubt, however, over whether even this represents a substantial difference between the two authors rather than different starting points. Pufendorf says, After the human race had multiplied and acquired a cultured mode of life, the peace of men did not suffer that there should remain for every man an equal power over all things, that is, that all things should lie open to all for the promiscuous use of every man. (De Jure Naturae, IV.IV.6) The implication of this remark is that there was a time, before scarcity and when wants were simple, when promiscuous use was possible. So, agreements were only needed after the human race had multiplied and acquired a cultured mode of life.
33. Grotius, Mare Liberum, 24.
34. Ibid., 24-25.
35. John Locke, Two Treatises on Government, ed. Peter Laslett (Cambridge, UK: Cambridge University Press, 1970), II.28.
36. This occupation or possession, however, in the case of things which resist seizure, like wild animals for example, must be uninterrupted or perpetually maintained, but in the case of other things it is sufficient if after physical possession is once taken the intention to possess is maintained. Possession of movables implies seizure and possession of immovables either the erecting of buildings or some determination of boundaries, such as fencing in. (Grotius, Mare Liberum, 25-26)
37. Grotius, De Jure Belli, II.II.III.
38. Ibid., II.II.II.5.
39. Grotius, Mare Liberum, 23. For Pufendorf's discussion of positive and negative community, cf. De Jure Naturae, IV.IV.2.
40. Grotius, Mare Liberum, 23. For Pufendorf's discussion of positive and negative community, cf. De Jure Naturae, IV.IV.2.
41. Pufendorf, De Jure Naturae, IV.IV.9.
42. Pufendorf's comment that Grotius's confuses negative with positive community is unnecessarily argumentative. Having made this criticism, he goes on to say that Aristotle's arguments against common ownership, which Grotius uses, were aimed at positive community 'while we are inquiring into the departure from negative community'. He then proceeds to use Aristotle's arguments to illustrate why men left the negative community (De Jure Naturae, IV.IV.7).
43. Pufendorf, De Jure Naturae, III.IV.4.
44. Pufendorf's formulation of the rights in a state of nature as indefinite rights was effective against Hobbes's contention that in a state of nature, everyone has a right to everything. Pufendorf's correlativity argument meant that this could not be true. However, although Pufendorf's indefinite rights did not operate as real rights entitling people to take from the common, they still had to be renounced before appropriation was possible.
45. Pufendorf, De Jure Naturae, IV.IV.2. James Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge, UK: Cambridge University Press, 1980), 97.
46. Pufendorf, De Jure Naturae, IV.IV.2. James Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge, UK: Cambridge University Press, 1980), 97.
47. Pufendorf, De Jure Naturae, IV.IV.9.
48. Ibid., 13.
49. Schlatter, Private Property, 146.
50. Tully, A Discourse on Property, 89.
51. Tuck, Natural Rights Theories, 79.
52. Grotius, De Jure Belli, II.II.VI.1-2.
53. Tuck, Natural Rights Theories, 172.
54. Locke, Two Treatises, II.31.
55. Tuck, Natural Rights Theories, 172.
56. On the spoilage limitation, see Tully, A Discourse on Property, 126-27; Richard Ashcraft, Locke's Two Treatises of Government (London: Unwin Hyman, 1987), 131; and Gopal Sreenivasan, The Limits of Lockean Rights in Property (Oxford, UK: Oxford University Press, 1995), 30-31.
57. On the spoilage limitation, see Tully, A Discourse on Property, 126-27; Richard Ashcraft, Locke's Two Treatises of Government (London: Unwin Hyman, 1987), 131; and Gopal Sreenivasan, The Limits of Lockean Rights in Property (Oxford, UK: Oxford University Press, 1995), 30-31.
58. On the spoilage limitation, see Tully, A Discourse on Property, 126-27; Richard Ashcraft, Locke's Two Treatises of Government (London: Unwin Hyman, 1987), 131; and Gopal Sreenivasan, The Limits of Lockean Rights in Property (Oxford, UK: Oxford University Press, 1995), 30-31.
59. Locke, Two Treatises, II.25.
60. Ibid.
61. Locke, Two Treatises, I.42.
62. I. Hont and M. Ignatieff, "Needs and Justice in the Wealth of Nations: An Introductory Essay, "in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, eds. I. Hont and M. Ignatieff (Cambridge, UK: Cambridge University Press, 1983), 37.
63. James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge, UK: Cambridge University Press, 1993), 113.
64. Tully, A Discourse on Property, 132.
65. Ashcraft, Locke's Two Treatises, 126-27.
66. Locke, Two Treatises, II.6., cited by Jeremy Waldron, The Right to Private Property (Oxford, UK: Clarendon, 1988), 146.
67. Locke, Two Treatises, II.6., cited by Jeremy Waldron, The Right to Private Property (Oxford, UK: Clarendon, 1988), 146.
68. Waldron, Ibid.
69. Ibid., 139.
70. Sreenivasan. The Limits of Lockean Rights in Property, 45.
71. Ibid., 43.
72. Ibid., 44.
73. Tully, A Discourse on Property, 130.
74. Grotius, De Jure Belli, II.II.VI.4 and II.II.XVIII.
75. Ibid., II.II.IV.1.