Pre-modern property and self-ownership before and after locke: Or, when did common decency become a private rather than a public virtue?

European Journal of Political Theory

Volumn 4, Issue 2, 2005, Pages 125-145

  Coleman, Janet ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

Aristotle; Hobbes; Identity; Liberal; Libertarian; Locke; Marxism; Obligations; Property; Self ownership

Indexed keywords

EID: 34248044032     PISSN: 14748851     EISSN: None     Source Type: Journal    
DOI: 10.1177/1474885105050446     Document Type: Article

References (40)

1. See G.A. Cohen (1995) Self-Ownership, Freedom and Equality, p. 230. Oxford: Oxford University Press.
2. My colleague, Dr Cécile Fabre, Government Department, London School of Economics, is preparing a monograph on this subject. See C. Fabre (2004) 'Justice and the Coercive Taking of Cadaveric Organs', British Journal of Political Science 34: 69-86.
3. See Cohen (n. 1), who treats the perspectives of libertarians, liberals and Marxists on the relation of self-ownership to private property, rights claims more generally and freedom. Included is an interesting analysis of Locke's Second Treatise, but one that is often cut loose from its 17th-century moorings. There is also no recognition of the 17th-century (and earlier) distinction between possession and ownership.
4. Karl Marx and Frederick Engels (1975-) Collected Works, vol. 5, The Germany Ideology, p. 47. London: Lawrence & Wishart.
5. Karl Marx and Frederick Engels Ibid. vol. 6, Manifesto of the Communist Party, p. 506.
6. Karl Marx and Frederick Engels Manifesto of the Communist Party, Ibid. vol. 5, p. 78.
7. Cohen (n. 1), pp. 122-3, 137, and especially ch. 6, pp. 144-64.
8. See D. Gauthier (1986) 'David Hume, Contractarian', in D. Gauthier, Morals by Agreement. Oxford: Oxford University Press.
9. Previously published (1979) Philosophical Review 88.
10. R. Tuck (1979) Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press.
11. R. Tuck (1993) Philosophy and Government 1572-1651. Cambridge: Cambridge University Press.
12. M. Villey (1964) 'La gènese du droit subjectif chez Guillaume d'Ockham', Archives de la Philosophie du Droit, NS 9: 97-127.
13. B. Tierney (1997) The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150-1625. Atlanta, GA: Scholars Press.
14. See K. Haakonssen (2002) 'The Moral Conservatism of Natural Rights', in I. Hunter and D. Saunders (eds) Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought, pp. 27-42. Basingstoke: Palgrave.
15. See Michael Zuckert (1997) 'Do Natural Rights Derive from Natural Law?', Harvard Journal of Law and Public Policy 3: 695-731.
16. Leviathan, I. xiii-xvi. 'Of persons, authors and things personated' is in I. xvi.
17. Dr Hannah Dawson of Queen's College Cambridge suggested this reading to me. I think it unlikely: Hobbes writes in Leviathan, I, xv: These dictates of reason men used to call by the name of laws but improperly: for they are but conclusions or theorems concerning what conduceth to the conservation and defence of themselves; whereas law, properly, is the word of him that by right hath command over others. I, xv further insists that justice is itself a rule of reason 'by which we are forbidden to do anything destructive to our life' and consequently this is what Hobbes takes to be 'a law of nature'. Natural law in the earlier tradition insisted that no matter the contingent circumstances there were never situations in which we were not obliged to act on the command. On the contrary, for Hobbes, the law of nature, the origin of justice, is keeping convenants only in conditions in which the individual judges it reasonable to perform. If justice is the constant will of giving to every man his own, where there is no 'own', no propriety, there is no injustice.
18. Also see G. Forster (2003) 'Divine Law and Human Law in Hobbes's Leviathan', History of Political Thought 24(2): 189-217.
19. On Locke's style of natural law argument in his egalitarianism that does not produce equal outcomes but maintains a doctrine of charity see Jeremy Waldron (2002) God, Locke and Equality: Christian Foundations in Locke's Political Thought, pp. 151-87. Cambridge: Cambridge University Press.
20. John Locke (1963) Two Treatises of Government, ed. P. Laslett. Cambridge: Cambridge University Press; amended text.
21. The 14th-century Dominican follower of Thomas Aquinas, John of Paris, argued as follows in his De potestate regia et papale, ch. 7: . . . lay property is not granted to the community as a whole . . . but is acquired by individual people through their own skill, labour and diligence, and individuals, as individuals have right and power (ius et potestas) over it and valid lordship (dominium); each person may order his own and dispose, administer, hold or alienate it as he wishes, so long as he causes no injury to anyone else, since he is lord (dominus). John of Paris (1971) On Royal and Papal Power, English trans. J.A. Watt, p. 103. Toronto: The Pontifical Institute of Mediaeval Studie. John of Paris uses the Ciceronian argument in ch. 1 about the origins of civil community: Since (original) men could not by the use of speech common to all men bring themselves to live the common life natural to them, and to abandon a state more fitting of beasts than men, others, moved by the situation of these men in their error, and using their reason to better effect, tried to bring them by more persuasive arguments to an ordered life in common under one ruler as Cicero says [De inventione] . . . Once thus brought together, they were bound by definite laws to live communally and those laws are called the law of nations.
22. Hence it is clear that the government we have been discussing here is from natural law and the law of nations. For a fuller discussion and references see J. Coleman (2000) A History of Political Thought from the Middle Ages to the Renaissance, pp. 118-33. Oxford: Blackwell. This also deals with the different attitudes to the origin of property and rights maintained respectively by Dominicans and Franciscans, pp. 122-4.
23. Laura Brace (1998) The Idea of Property in 17th-Century England: Tithes and the Individual, pp. 6, 102. Manchester: Manchester University Press. She finds Locke's idea of owning your own labour, which entailed owning the products of that labour in the anonymous Husbandman's Plea, an anti-tithe tract written at least 40 years before Locke's Second Treatise. To my mind this concept of rightful possession is not equivalent to Locke's concept of self-ownership which is more radical and interior. See later on what he has to say in the Essay Concerning Human Understanding.
24. The development of the language of active rights attached to personal property rather than passive rights attached to land is observed in the writing of Grotius (1651) Of the authority of the highest powers,
25. Pufendorf (1673) On the duties of man as citizen. Both London. In a state of nature each was supposed to possess a sphere of his own, his suum, injuries against which could be repelled by force. One's suum as life, limb, liberty, fama (reputation) and honour had a positive content. But a right to a liberty of conscience, bound in with a right to private property within the sphere of one's suum, under the law of nature, is not as radical as Locke's self-ownership, where that self is self-defined by its own unique experiences. To have inalienable rights over one's own powers to defend and preserve oneself is the long-enduring pre-modern understanding of dominium as sovereignty over oneself, not ownership of that self. To have a right, consequent on a duty, to preserve mankind in general, after securing one's own preservation, does not mean one 'owns' mankind.
26. On the 'second scholastic' see Annabel S. Brett (1997) Liberty, Right and Nature: Individual Rights in Later Scholastic Thought. Cambridge: Cambridge University Press.
27. Rudolf Schüssler (2003) Moral im Zweifel, die scholastische Theorie des Entscheidens unter moralischer Unsicherheit. Paderborn: Mentis Verlag.
28. Leviathan, II. xxx.
29. Brace (n. 17), p. 131, refers to John Cooke (1648) Unum necessarium: Or the poore mans case, p. 12. London.
30. R. Younge (1654) The Poore's advocate, book 1, p. 16, book 2, p. 2. London. Here we read that alms should not be considered a gift but a debt. Those who possessed superfluities owed this to the poor. The duty of the rich was to give to the poor in proportion to their means and those even of poor estate owed alms to those in extreme need or in danger of death. This, penned by Non-conformist Protestants of one group or another in the 17th century is a verbatim recapitulation of 13th- and 14th-century scholastic positions on dominium as sovereign duty of care and its obligations.
31. (1646) An Arrow against all tyrants, p. 3. London. Cited in Brace (n. 17), p. 150.
32. Cohen (n. 1), p. 209, also cites Overton from the same text, An Arrow: To every individuall in nature is given an individual property by nature not to be invaded or usurped by any: for everyone as he is himselfe, so he has a self-propriety, else could he not be himselfe . . . every man by nature being a king, priest and prophet in his owne natural circuit and compass. This is Overton's creative reference to Cicero's De officiis 1. 110-11 and the latter's four personae theory of personality: nature has 'as it were' dressed every human with certain personae or roles; one being common to all men and arising from the fact that we all have a share in reason and in the superiority by which men surpass brute creatures. The second persona or role for which nature has 'dressed' us is specifically assigned to individuals and their personal traits and talents which no one may invade or alter. The third persona is imposed by some chance or circumstance as an entirely accidental determinant of someone's public identity; and the fourth persona is 'something we assume for ourselves by our own decision', a public role that proceeds from each person's own will. Natural justice gives to each man his due and recognizes what Overton calls his natural self-propriety. See further, J. Coleman (2000) A History of Political Thought from Ancient Greece to Early Christianity, pp.259-63. Oxford: Blackwell.
33. John Locke (1975) An Essay Concerning Human Understanding, ed. P.H. Nidditch, 2. 25 and 2. 27. Oxford: Oxford University Press.
34. See Cohen (n. 1), p. 73, and p. 84 where he thinks Locke argues for joint ownership, prior to individual appropriation. Nor is Cohen's rejection of the Lockean proviso (no one is worse off), p. 88, Locke's test of economic systems.
35. Second Treatise, para. 31. In sustaining what had earlier been the Dominican view of the natural law's defence of appropriation by individuals through labour, Locke's position was not as radical as that of the Ranters who insisted that God would punish individuals appropriating things to themselves and for themselves. See N. Smith (ed.) (1983) A Collection of Ranter Writings, p. 65. London: Junction. True communion amongst men is, for Ranters, holding things in common without private property, a view maintained by 14th-century Franciscans as the pre-lapsarian position and to which they aspired through voluntarily giving up civil rights to ownership, retaining only simple use of daily commodities for which they begged.
36. Cohen (n. 1), p. 103.
37. Ibid. p. 121, on Marxism's exaggeration of the extent of exploitation depending on an initial inequality of rights in goods.
38. Brace (n. 17) discusses the increasing popularity of the I7th-century perspective on property as to be improved, made productive and useful rather than hoarded or stewarded. On improvement discourses of the 1650s, ibid. pp. 68-9. Also see Jeremy Waldron (1988) The Right to Private Property. Oxford: Oxford University Press.
39. A version of Aristotle's argument was maintained amongst certain of Locke's contemporaries. He simply rejected it and the views of those who continued to insist that self-consciousness is not privately and inwardly self-determined by each. Furthermore, the Ranters' ideal was rest and an end to labour. Similarly, John Cooke (n. 20), p. 12, held to the older position that it was 'Governours [who] must of necessity and in all reason provide for the preservation and sustenance of the meanest member, he that is but as the little toe of the Bodie Politique', cited in Brace (n. 17), p. 131.
40. Locke (n. 23), 2. 27, 9-10.