From: msmorris@watsci.UWaterloo.ca (Mike Morris)
Subject: Property Rights
Organization: University of Waterloo
Date: Sat, 21 Nov 1992 02:03:17 GMT


                            Friday, the 20th of November, 1992
Part I of II.
  
A response to Mikhail Zeleny's article of the 29th of October.

My apologies, Mikhail, for having taken so long to reply,
but, even though I began this before I began reading Locke,
I wanted to make it through Locke's _Two Treatises of
Government_ before I did.

It was no doubt my fault for jumping into the middle of a thread,
but I was prompted to do so when somebody had declared something
like ``All Rights are Property Rights'', and you countered with
Proudhon's ``Property is theft''. The former declaration is not the
way I would want to put it, and, if I were being uncharitable about
it, I might call it sloppy and cavalier, but I believe I can make
it make sense, and connect it with what I suppose to be the case.
I do not believe I can do so with the latter.

I had mentioned my dissatisfaction with the Charlottetown Accord
(a Canadian constitutional compromise which has been rejected
by referendum), especially I mentioned my dissatisfaction with
its enshrining notions like a Right to Education and a Right to
Housing. You responded:
   This sounds interesting.  Please elaborate both on the proposed
   compromise, and your feelings about it.

I hope that I have elaborated on the compromise itself in the article I
posted under the subject line Fragments. But, since I muted my feelings
about it therein, I'll expand on those a little bit here. First, though,
I note that before the referendum, the government mailed the text of
the Accord out to all Canadian households. Actually, there were two
mailings: a draft of the Accord and then a ``final version'' (which
looks alot like the draft to me). I cannot find anything in either
text about enshrining a Right to Education or a Right to Housing,
though I do find equally distressing locutions, such as in the
proposed Canada Clause (a preamble) where there is an assertion that
``Canadians are committed to a respect for individual and collective
human rights and freedoms of all people.''

I got the notion that there were to be Housing and Education Rights
twice, once from a Yes advocate on CBC radio who claimed that their
inclusion in the new constitution would be reason enough to vote for it,
then again from a fellow dinner guest, who gave out this same reason
for voting Yes. I remember contradicting her that this were reason
enough for me to vote No, and she, after I'd explained that such things
shouldn't be called Rights, asserted that ``of course, rights are what we
conventionally agree them to be'', which only served to underline
to me why I thought such things should not be called Rights in the
first place.  But, she was a lawyer, and lawyers are used to a different
usage.

The reason I think things like Education and Housing cannot be
Rights (which, whether or not they were part of the Accord, are
common enough locutions on both sides of the border to merit
consideration---the University bookstore here even has a poster
up declaring that ``Literacy is a Right''), and the reason I think 
Rights cannot be collective, is because Enlightenment liberal
usage bases Rights, as I have suggested, on an indivisible and
therefore individual Justice. To speak of collectivities as
having Rights is thus to misunderstand what Rights are. And, Goods
like Education and Housing do not grow on trees. That is, if there
be no money to pay for them, or no teachers who want to teach, no
builders who want to build, there can be no such thing as a natural
Right to either. No injustice were then done if people were denied
them (unless of course we want to resort to shaking our fists at God).
But, harming a man even in the state of nature merely for having
spoken remains a crime. Basically, I think that Housing and Education
are fundamentally different in kind from Free Speech, and that
calling them by the same name as Free Speech blurs an ethical
distinction.

Probably anyone using the word ``Rights'' these days ought to at
least be made to define what he means by it. There is a longstanding
usage which means something like ``legitimate interests''. Now, I
know I've run into this often enough in reading English translations
over the last year of Polybius, Appian, and Livy. So, I tried to
search through the appendices of these volumes to find examples. I
found nothing completely satisfying (completely satisfying would
have been something like ``this city should not be set free, for
we have an ancient right to rule over it''), but this might do:

     ``the Rhodians asked for Peraea---a district on the mainland
       opposite their island, and under their ancient rule---and
       demanded that the garrisons be withdrawn from Iasus and Bargyliae
       and the city of the Euromenses, and on the Hellespont from Sestus
       and Abydus, and that Perinthus should be given back to the
       Byzantines and permitted to enjoy its ancient rights, and that
       all the markets and ports of Asia should be made free.''
             [Livy, XXXII, xxxiii, 6-7]

     ``Rhodii Peraeam---regio est continentis adversus insulam,
       vetuste eorum dicionis---repetebant postulabantque praesidia
       deduci ab Iaso et a Bargyliis et Euromensium urbe et in
       Hellesponto Sesto atque Abydo, et Perinthum Byzantiis in
       antiqui formulam, iuris restitui, et liberari omnia Asiae
       emporia portusque.''

[The time is 197 B.C., the occasion a conference a little before
Cynoscephalae between the Roman commander, Titus Quinctius
Flamininus, plus allies, and Philip V of Macedon, over a possible
peace treaty to end the Second Macedonian War.] In any event,
the OED gives plenty of examples in early English of the
kind of usage I mean.

To Jefferson and to Enlightenment liberals (particularly, to the authors
of the American Secular Testament), ``Rights'' and the doctrine of the
Rights of Man came to mean something completely different---powers
which governments ought not to have, powers which are reserved to
individual human beings by virtue of their being human beings.

But I think the most common usage now is closer to that of the
Rhodians in Livy. Except that people like to pretend that these
``legitimate interest'' Rights have the same moral force as Rights
of Man. Since I personally believe the doctrine of the Rights of Man
to be a singular moral advance in human history, I don't like the fact
that blurring the distinction between the two usages undermines
and relativizes the moral force of asserting the things that really
are Rights.

Certainly this blurring is true in Canada, where people talk about
``collective rights'' without batting an eye (recall that
these collective rights can be used to justify laws, such as
the infamous Quebec sign laws, that restrict free speech).
Rights that are here asserted are always relativized---thought
to be held in balance with other interests. Thus, there is an attempt
at a Bill of Rights in Canada which by name is The Canadian Charter of
Rights and Freedoms (The Constitution Act of 1982). The
trouble with this Charter is that government can override
it at will. Government can do this in two ways: First, it can
declare any particularly cherished legislation beyond the
pale of the Charter (this is called invoking the ``notwithstanding
clause''---what Quebec actually did to pass its sign laws). Second,
the court can decide that government has a ``compelling interest'' in
making the law (so that, in regard to an anti-hate-speech law,
the Supremes have voted 7-0 that it does violate the Charter's
guarantee of free speech, but have then turned around and voted 4-3
that that's OK anyway because government has a compelling interest
to prevent hate speech).

[I do believe Housing and Education are legitimate concerns of government
(though I find attractive the libertarian argument that government may well
be the maximally dumb way to administer these things), and so I fully agree
that they deserve mention in the preamble to one's constitution.
I simply do not think they are Rights.]
  
OK, Mikhail, you quoted the key paragraph (27) for explaining
Property Rights from John Locke's _Second Treatise of Government_
(aka _Two Treatises of Government_ II.27 or _An Essay Concerning
the True Original, Extent, and End of Civil Government_, 27):
   ``Though the Earth, and all inferior Creatures be common to all Men,
     yet every Man has a _Property_ in his own _Person_. This no Body has
     any Right to but himself.  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 joyned to it something that is his own,
     and thereby makes it his _Property_.  It being by him removed from the
     common state Nature placed it in, hath by this _labour_ something
     annexed to it, that excludes the common right of other Men.  For this
     _Labour_ being the unquestionable Property of the Labourer, no Man but
     he can have a right to what that is once joyned to, at least where there
     is enough, and as good left in common for others.''
  
The three paragraphs of your gloss on Locke's paragraph follow, where
I have inserted in square brackets [] my initial reaction to it,
before I had gone on to read Locke for myself:
  Observe that Locke is using `Nature' as a term of distinction: the
  natural realm ends *precisely* where the personal dominion begins.
[But, is the boundary of this distinction at the epidermis or
somewhere different?]
  According to this account, in nature there is no property right, as
  all things exist in a "common state".  An object becomes a man's
  property when it is removed from this common state by dint of his
  labor, whereby a certain _personal_ quality is imparted to it.  In
  other words, in order to become property, a natural entity must be
  _alienated_ from the natural realm, in virtue of receiving some
  distinctly personal quality of him, who undertakes the process of such
  alienation.  The person, then, is the _source_ of property as such;
  can he also be property himself?

  Were we to choose to interpret Locke's account as merely _genetic_,
  telling the story of the concept's origin, there is no reason why this
  cannot be so.  However, on this interpretation, there is no _natural
  right_ of property ownership: just because things happened to come
  about in a certain way, doesn't mean that they _ought_ to be that way.
  On the other hand, once we opt for a more profound view, which regards
  Locke's account as _constitutive_ of the notion of property, a
  plausible claim for a natural property right can be derived therefrom.
[But, it seems to me you do this without examining whence comes his Right
to Person. Is Locke's assertion of a Right to Person irreducible to
you?]
  However, in virtue of having chosen this alternative interpretation,
  we are forced to reject the facile "self-ownership" interpretation of
  Locke's claim that every Man has a property in his own person.  For
  such a reading would regard the right each man has in his person as
  the same kind of right he acquires in non-human goods in virtue of
  having alienated them from nature, in spite of the fact that a person
  is *not* something fashioned from raw natural materials in quite the
  same way a statue may be cut from a formless piece of rock.  Indeed,
  if persons were indeed constituted by such alienation (by whom?),
  there would be no metaphysical basis for Locke's fundamental
  distinction between the common realm of nature, and the personal
  domain of the individual; consequently, nor would there be any moral
  ground for denying the possibility of one person acquiring a property
  right in another, in direct contradiction to the original claim that
  nobody but himself has any right to his own person.  In short, the
  naive "self-ownership" interpretation of Locke's claim is
  uncharitable, because inconsistent.
[Not so fast. You seem to me to be setting it up that one's Right
to Property is different in kind than one's Right to Person. Locke
certainly derives a Right to Property from a Right to Person. But, is
it clear that a Right to Person is not itself nevertheless of the same
kind as his Right to Property? It hinges on a possible ambiguity
in interpreting ``person'' and ``self''. Basically, if one's person and self
are always to be interpreted here as one's body+soul, then you'd be right.
I don't know if it is what is meant, but, I do think a different
take would make the passage consistent. You could slice an ear
or a big toe off of me without taking away my person (we'll not
discuss other parts of my anatomy in this context). I would suggest
that this consideration leads to a classical perspective, consistent
with ordinary experience, which would have it that one's self is not
to be identified so much with body+all the parts of one's soul as with
one's rational soul alone, or at least one's soul where rational
soul is in charge. If this were the case, then one's Right of
Person in Locke's usage can become the Right of rational soul to alienate
the body and the passions from their natural, animal functions to the higher
purpose of that self. I.e. it then seems to me quite analogous to Locke's
Right to Property. (It also leaves open the possibility that one's body
might be justly taken by someone else insofar as one has not appropriated
it to rational use...) Right to Person, then, becomes an ethical basis
and *not* a ``metaphysical basis'' for a Right to Property. The metaphysical
basis is the identification of self with rational soul, but I don't think
anyone calls this identification a basis a Right so much as an identity.]
  
  Thus we are led to an interpretation of Locke as saying that man has a
  property in his person, *strictly* in the sense that his person is not
  a mere part of the common realm of nature, potentially open to
  cultivation by others and proprietary acquisition by them; on the
  contrary, his person is *inalienable*; no one but himself may have any
  *right* in it. 
[Again, I think Locke's Right to Person must be an ethical assertion.
Because certainly if ``person'' included one's big toe, then that is
alienable, in much the same way a tree one might carve into a totem pole
from out of the forest of unowned nature would be.]
                 Nevertheless, the right that he has in his person is
  not the right of ownership, but rather the right to freely enjoy
  autonomous control over himself, in a manner that systematically
  separates his person from the common natural realm potentially open to
  cultivation by others.  This, I take it, is what Locke means in the
  above paragraph.

OK, so much for what my response was before having read Locke.

Before I go on to discuss in more detail, let me first gloss in my own
words your three paragraphs as I was reading them above (you can tell
me if I've understood or no): You see that Locke's Right to Property
is based on Locke's Right to Person, and object to Locke's then saying
that one has a *property* in one's own person. In other words, you think
that Right to Person provides a ``metaphysical basis'' for the subsequent
constitution of property rights, and its very quality as a basis
hinges upon a Right to Person being different in kind from a Right
to Property. Ergo, self-ownership is not a property right (unless one
succeeds in contradicting Locke's development), and Locke loses points
on integrity because he has called person property.

I think it a possible reading that the metaphysical basis is one step
further down, that a Right to Property is constituted from a Right to
Person, but that a Right to Person in turn is constituted upon this
metaphysical basis in almost exact analogy with the way a Right to
Property itself is constituted. The metaphysical basis becomes simply
the focus on Rational Soul as ruler of Self, which wouldn't itself be
called a Right. A Right to Person accrues insofar as Rational Soul
alienates Self or Person to rational, and not bestial, ends. Thus a
Right to Person is almost exactly like a Right to Property, and hence
it's perfectly OK for Locke to say that one has a Property in one's Person.

As I go back and reread what you wrote, Mikhail, you almost sound
to me like you are saying the same thing, except then I don't
understand the tone about Locke not writing with integrity. I'm
finally unsure whether you were arguing with Locke, or with
``too facile'' interpretations of Locke.

Anyway, that would be my way of explaining how property rights
are constituted based on what I've read in Locke. I actually like
it. One has a Right to Person only insofar as one has subordinated
the animal Self, and one's Will, to the control of Rational Soul. 
Which echoes Locke's own `Liberty is not Licence, but obedience to
Natural Law' development in the Second Treatise. It is exactly
this consideration that is my own argument against those who would
advocate ``Animal Rights.'' It may be that whales have a vast
intelligence, but, I will only understand them to have a
Right to Life the day it becomes possible for me to hold a conversation
with them, to come to a meeting of minds with them. Otherwise, all it
is to me is a question of resource management. Same thing applies to
``collective rights.'' A collectivity cannot have these kind of
Rights at all, because Rational Soul resides only in individual
human beings. Also, it becomes clear (as I believe it is clear from
many parts of the _Two Treatises_, which apparently has been hailed as
a work of early feminism) that when one speaks of the Rights of
Man in this context, *because* these Rights attach to Rational
Soul, ``Man'' must mean _anthropos_ and not _aner_, ``human being''
and not ``male human being''.

I like it, too, that criminals can be said to forfeit Rights
by choosing to abandon the control of Rational Soul (equivalent
to disobeying Natural Law). I see some problems, too:
Is the enslavement of those who have rebelled against reason
justified? What about children, who are not yet capable of rational
judgment, do they have Rights? What about the mentally incapacitated?
But, I see no problem bigger than can be solved with a judicious
consideration of potentiality and the further reflection that some
acts we shouldn't do, not because the other has a Right not to be
done unto, but because it would be soul-destroying for us to do them.

The reason, though, I launched into reading Locke was: (1) It was a book
I felt I ought to read (ought to have read); and (2) I was curious about
how much scrutiny Locke's usage could bear. I read the Cambridge-Texts-
in-the-History-of-Political-Thought edition, edited by Peter
Laslett. This had about 150 pages devoted to Introduction,
150 pages to the First Treatise, 150 to the Second, and
the texts were heavily annotated. Both from the Two Treatises
taken as a whole and from the impression I got from Laslett, I think
Locke isn't very tight when it comes to defining the key terms in
the paragraph in question---Property, Right, Person. I'm left not
exactly knowing what Locke meant by paragraph II.27.

In a long footnote to II.27, Laslett points to two other
constitutions of a Right to Property contemporary  with Locke's.
The first of these is from Locke's friend, James Tyrrell (_Patriarcha
non Monarcha_, 1681):
      ``Supposing the Earth and the fruits thereof to have been
        at first bestowed in Common on all its inhabitants; yet
        since God's first command to man was, encrease and multiply,
        if he hath a right to perform the end, he hath certainly
        a right to the means of his preservation, and the propagation
        of his species, so that though the fruits of the earth, or
        beasts, for food, were all in common, yet when once any man
        had by his won labour acquired such a proportion of either
        as would serve the necessities of himself and Family, they
        become so much his own as that no man could without manifest
        injustice rob him of those necessities.''
There is apparently some question as to the originality of the idea.
Tyrrell was Locke's friend and confidante, so this may well have
come from Locke, especially when Laslett argues Locke may have written
the Second Treatise as early as 1679. I'll note that Tyrrell sounds
alot like Locke to me, except in Tyrrell it is clear that Right to
Property refers to the injustice of robbing someone of property, whereas
in Locke, ``Right'' might well be closer to ``legitimate interest''.
Also in the same footnote is this passage from Richard Baxter's _The
Second Part of the Nonconformist's Plea for Peace_ (1680):
      ``_Propriety_ is _naturally antecedent_ to _Government_,
        which does not _Give it_, but _regulate it_ to the
        _Common good_: Every man is born with a propriety in his
        _own members_, and nature giveth him a propriety in
        _his Children_, and his _food_ and other just _acquisitions_
        of his industry. Therefore no Ruler can justly deprive
        men of their _propriety_, unless it be by some _Law of God_
        (as in the execution of justice on such as forfeit it) or
        by their _own consent_, by _themselves_ or their delegates
        or _Progenitors_; And men's _lives_ and _Liberties_ are the
        chief parts of their propriety. That is the peoples just
        _reserved Property_, and _Liberty_, which neither _God taketh
        from them_, by the power which his own Laws give the Ruler, nor
        is _given away_ by their _own_ foresaid consent.''
Which is interesting because he seems to talk about a Property of Person
in quite the way I suggested, separating man from man's members. Also
he spreads Property around to include members, food, children, lives,
and liberties.

[continued to Part II of II]

                Mike Morris
         (msmorris@watsci.uwaterloo.ca)