From: msmorris@watsci.UWaterloo.ca (Mike Morris)
Subject: Property Rights
Organization: University of Waterloo
Date: Sat, 21 Nov 1992 02:05:23 GMT

                             Friday, the 20th of November, 1992

Part II of II.

Compare Locke in I.86:
    ``But not to follow our A______ too far out of the way, the plain
      of the case is this. God having made Man, and planted in him, as
      in all other Animals, a strong desire of Self-preservation,
      and furnished the World with things fit for Food and Rayment and
      other Necessaries of Life, Subservient to his design, that Man
      should live and abide for some time upon the Face of the Earth,
      and not that so curious and wonderful a piece of Workmanship
      by its own Negligence, or want of Necessaries, should perish
      again, presently after a few moments continuance: God, I say,
      having made Man and the World thus, spoke to him, (that is)
      directed him by his Senses and Reason, as he did the inferior
      Animals by their Sense, and Instinct, which he had placed in them
      to that purpose, to the use of those things, which were serviceable
      for his Subsistence, and given him as means of his _Preservation_.
      And therefore I doubt not, but before these words were pronounced,
      I Genesis 28, 29. (if they must be understood Literally to have
      been spoken) and without any such Verbal _Donation_, Man had
      a right to a use of the Creatures, by the Will and Grant of God.
      For the desire, strong desire of Preserving his Life and Being
      having been Planted in him, as a Principle of Action by God
      himself, Reason, _which was the Voice of God in him_, could
      not but teach him and assure him, that pursuing that natural
      Inclination he had to preserve his Being, he followed the Will
      of his Maker, and therefore had a right to make use of those
      Creatures, which by his Reason or Senses he could discover would
      be serviceable thereunto. And thus Man's _Property_ in the
      Creatures, was founded upon the right he had, to make use of those
      things, that were necessary or useful to his Being.''
Also, I.92:
    ``Property, whose Original is from the Right a Man has to use
      any of the Inferior Creatures, for the Subsistence and Comfort
      of his Life, is for the benefit and sole Advantage of the
      Proprietor, so that he may even destroy the thing, that he has
      Property in by his use of it, where need requires:...''
Here, Rights seem to be legitimate interests again, or at least the
means thereto. And we are to learn what these Rights exist
by use of our _Reason_. [Mortimer Adler, in _We Hold
These Truths_ would call such things as Education and Housing
rights in much the same way Locke gives us a Right to cattle and
venison here. Adler reasons we need to be educated in order to
be whole persons and responsible electoral citizens, and so do
we need basics like food and housing, ergo we have a Right to them.]

In I.53, he is arguing that parents are not the makers of the child,
and therefore have not Absolute Power over their children:
      ``To give Life to that which has yet no being, is to frame
        and make a living Creature, fashion the parts, and mould
        and suit them to their uses, and having proportion'd them
        and fitted them together, to put into them a living Soul.
        He that could do this, might indeed have some pretence
        to destroy his own Workmanship. But is there any one so bold,
        that dares thus far Arrogate to himself the Incomprehensible
        Works of the Almighty? Who alone did at first, and continues
        still to make a living Soul, He alone can breathe in the
        Breath of Life. If any one thinks himself an Artist at this,
        let him number up the parts of his Childs Body which he hath
        made, tell me their Uses and Operations, and when the
        living and rational Soul began to inhabit this curious
        Structure, when Sense began, and how this Engine which he has
        framed Thinks and Reasons: If he made it, let him, when it is
        out of order, mend it, at least tell wherein the defects lie.''
What is relevant here is the support it gives for the notion that
rational soul for Locke is distinct from body and other parts of one's
person. [Also, I find the allusion to the idea---from Aquinas is it?---
that rational soul---i.e. perhaps coincident with a human Right to
Life---enters the fetus sometime after conception intriguing. I'm
reminded, too, that I once knew an Iranian who claimed not
to understand the abortion issue at all. In Iran, he said,
the father has a Right of Abortion until 258 months after the
first trimester.]

Laslett sees _Two Treatises_ as part of one whole, written about
ten years before the traditionally supposed 1688-89, and concerned
not so much with arguing with Hobbes as with refuting the Divine-Right-
and-Absolute-Power-of-Kings-and-its-Descent-from-Adam-through-Patriarchy of
Sir Robert Filmer's _Patriarcha_. The First Treatise is almost a
net-style interlinear destruction of Filmer's monarchical apologia.
The Second Treatise then goes on to construct government by the
consent of the governed out of the ashes of absolute monarchy.

Some more passages with interesting usages:
   ``_Political Power_ then I take to be _a Right_ of making
     Laws with Penalties of Death, and consequently all less Penalties,
     for the Regulating and Preserving of Property,...''
                                    [II.3]
Here, power itself is a Right. Perhaps this is only the legal, or
contractual, usage.
   ``To understand Political Power right, and derive it from its
     Original, we must consider what State all Men are naturally
     in, and that is, a _State of perfect Freedom_ to order their
     Actions, and dispose of their Possessions, and Persons as they
     think fit, within the bounds of the Law of Nature, without
     asking leave, or depending upon the Will of any other Man.''
                                    [II.4]  
   ``But though this be a _State of Liberty_, yet it is _not
     a State of Licence_, though Man in that State have an uncontroleable
     Liberty to dispose of his Person or Possessions, yet he has not
     Liberty to destroy himself, or so much as any Creature in his
     Possession, but where some nobler use, than its bare Preservation
     calls for it. The _State of Nature_ has a Law of Nature to govern
     it, which obliges every one: And Reason, which is that Law, teaches
     all mankind, who will but consult it, that being all equal and
     independent, no one ought to harm another in his Life, Health,
     Liberty, or Possessions.'' [II.6]
The whole work is shot through with this *Law of Nature*. Now, in
physics I'm used to Laws of Nature, but I usually mean thereby scientific
laws like The Second Law of Thermodynamics, laws which describe
a predetermined Cauchy development from given (or measured) initial
data. Locke's notion is rather different. His Law of Nature does
not determine how human beings *will* behave, but is a law of
thou shalts and thou shalt nots, that is, a law which prescribes
how human beings *ought* to behave, what I might have
preferred to call Moral Law, but natural in the sense that it
does not rely on revealed Commandments for its legislation.
I would suggest that the thing which connects Right to Person
with Right to Property in the first place is Locke's Natural Law, i.e.
the real basis for his Right to Property is a moral basis,
metaphysically grounded in the existence of this Natural Law
and the Reason (i.e. rational soul again) which makes this
Natural Legislation known to us (I feel like I'm going to have
to put myself through a special regimen of exercises in order to resist
the urge to capitalize that reading Locke has given me).

In II.7 he introduces that men have an executive power over
this Natural Law, in order that men ``may be restrained from invading
others Rights''. In II.8 he discusses the possibility of the
transgression of this Law of Nature, and ``by the Right he hath
to preserve Mankind in general'' ``_every Man hath
a Right to punish the Offender, and be Executioner of the Law
of Nature_.'' Again, ``Right'' seems to mean ``power''
or ``legitimate interest''. As in:
   ``Whether we consider natural _Reason_, which tells us, that
     Men, being once born, have a right to their Preservation,
     and consequently to Meat and Drink, and such other things,
     as Nature affords for their Subsistence: Or _Revelation_...''
                                       [II.25]
One has a right to preservation, hence a right to the meat and drink which
are necessary to it. [Hence, housing and education as well.]

Note how the Law of Nature constitutes this Right to Property:
   ``It will perhaps be objected to this, That if gathering
     the Acorns, or other Fruits of the Earth, &c. makes a right
     to them, then anyone may _ingross_ as much as he will. To
     which I Answer, Not so. The same Law of Nature, that does
     by this means give us Property, does also _bound_ that
     _Property_ too.'' [II.31]

Again, the State of Nature, and Natural Law:
   ``Man being born, as has been proved, with a Title to
     perfect Freedom, and an uncontrouled enjoyment of all
     the Rights and Priviledges of the Law of Nature, equally
     with any other Man, or Number of Men in the World, hath
     by Nature a Power, not only to preserve his Property,
     that is, his Life, Liberty and Estate, against the Injuries
     and Attempts of other Men; but to judge...'' [II.87]
Here ``Property'' is given a very broad definition indeed.

In II.95, constituting government on the consent of the governed,
the majority ``have a Right to act and conclude the rest''.
Again, a legal or contractual right applied to a collectivity
by consent.

   ``And 'tis not without reason, that he seeks out, and is willing
     to joyn in Society with others who are already united, or have
     a mind to unite for mutual _Preservation_ of their Lives,
     Liberties and Estates, which I call by the general Name,
     _Property_.''  [II.123]
Again, a very broad meaning for ``Property''.
Also, from this same paragraph:
   ``To which 'tis obvious to Answer, that though in the state of
     Nature he hath such a right, yet the Enjoyment of it is very
     uncertain, and constantly exposed to the Invasion of others.''
In other words, ``a right to something'' and ``an enjoyment of it''
are clearly differentiated (the thing itself may be alienable,
though the right to it need not be).

In II.125, we read that the Law of Nature stands over and limits
the power of even duly constituted legislative bodies that men consent
to put over themselves. Here, Rights come closer to a Bill of Rights
understanding, they are limitations on the power of governments which come
from the nature of the social contract and the natural authority of the
persons making it in order to constitute that government in the first
place.

    ``For I have truly no _Property_ in that, which another
      can by right take from me, when he pleases, against my consent.''
                        [II.138]
This is in the context of listing what limitations the power of the
legislature should have. Here, Right to Property seems more morally
anchored.

   ``(By _Property_ I must be understood here, as in other places,
     to mean that Property which Men have in their Persons as well
     as Goods)''  [II.173]
   ``_Paternal Power_ is only where Minority makes the Child
     incapable to manage his property; _Political_ where Men
     have Property in their own disposal; and _Despotical_
     over such as have no property at all.''  [II.174]
Property broadly defined again, and so much so that, unless
one has property, one is under despotical rule.

    ``Every Man is born with a double Right: _First, A Right of
      Freedom to his Person_, which no other Man has a power
      over, but the free Disposal of it lies in himself. _Secondly,
      A Right_, before any other Man, to _inherit_, with his 
      Brethren, his Fathers Goods.'' [II.190]
Another couple of examples of the use of ``Right'', here presumably
connected directly to Natural Law.

Well, I conclude from all this that I can't pin Locke down
on Property, Right, Person, or Natural Law itself. I also
conclude that the reading of II.27 above seems possible
to me, but that I am especially uneasy about what Locke means
by Rights to Person and Property. Does it mean
more than that one, by nature, has an interest in one's
person and in the material things one has alienated from
nature through the application of one's labour? Or, does it go
farther in asserting the injustice of encroachments upon
one's person and labour-acquired possessions? 

In other words, Mikhail, I believe this reading of II.27 works
to make it consistent, and does so in Locke's own terms.
But, I would not claim that Locke would have endorsed it.

I must say that I have been glad of this whole exercise. There
are so many wonderful (=original, thought-provoking) parts to
the book, that any of it could be a jumping-off place for
discussion. It is easy to see why Jefferson placed Locke in his
triple pantheon with Newton and Bacon.

MZ:
  As for Proudhon, it is no great revelation that his fundamental
  intuition is that of a communitarian.

As for Proudhon, what I meant is that his ``property is theft''
has a quality of gnomic scintillation about it, all depending
on how you look at the phrase. What Proudhon means of course is:
Private property is an unjust alienation of the property rights of
the collectivity. But, circularity comes in because it's a little
hard to define the word ``theft'' without using property. And, indeed,
we could take Proudhon's phrase to mean just that---that the concept
of property introduces the concept of theft. And then we find Proudhon
shaking hands with...Locke, who wrote
      `` `Where there is no property there is no injustice' is
          a proposition as certain as any demonstration in Euclid.''
                       [_Essay on the Understanding_, IV,iii,18]
                          
On Proudhon's system, you say:
       ... no waste would result from hoarding, simply because hoarding
  would be prohibited.  Whether this radical prohibition will result in
  the extinction of all effort, is another question altogether.

I almost can't think of the first question without wrapping up in
it this ``another question altogether''. And, since the answer to
that other question is so clear to me, I find the notion that private
property is unjust absurd.
  
  So, as I said before, Proudhon's anarchist radicalism is characterized
  by a quality of integrity eliminated from Locke's liberalism by his
  middle-of-the-road humanitarian instincts.

In physics, I am used to at least two distinct notions of integrity. One
notion is purely theoretical: One exhibits a certain integrity by sticking
to the logically predictive consequences of one's theoretical
formulations, by being honest about what one's theories really say.
The other notion of integrity is that one be honest about what really
is the case in the real world, that one has the humility to abandon
one's theories when they don't fit what is the case. Given the number of
theories one meets up with that have the first kind of integrity---
theories that are nothing if not consistent---you'll forgive me if I'm
more impressed by the second kind of integrity than by the first.

  Again, I disagree that Jefferson, rather than Montesquieu, fairly
  represents "Enlightenment liberalism in its full flower as a political
  philosophy", -- rather than, say, as political praxis, -- but then I
  don't care for extended contemplation of current affairs, which might
  be regarded as either a *really* full flowering, or the filthy
  effluvia, of the political tradition in question.

I am happy to agree that Jefferson was a user of liberal philosophy
rather than an originator, yes. My focus has been on ``Rights'',
however, and the fact that when this notion was injected into
American political institutions it had a meaning different from
its ancient meaning, as well as a meaning different from what it
often has today.

From my understanding now of Locke's usage of Rights, I am
pleased to think that my instinct in this was correct. Locke
is at the beginning of the Enlightenment, and, though an
originator, was still connected with the classical usage. His
is not quite yet the usage that gives us The Rights of Man.

  A real Empiricist would only allow knowledge coming from *sensory*
  experience, Mike.

At first I was going to say again, fair. I am sure that I could only
qualify as a (lower-case) empiricist. But, at about the time
(a few weeks back) I first started whittling on this response, I
was reading the book _Sor Juana's Dream_ (_El Sue~o_, by Sor Juana
Ines de la Cruz, translated with Introduction and Commentary
by Luis Harss). I was surprised by the following passage:

         the noblest hinge, joining
         pure spirit, high enthroned
         to meanest creature most debased;
         blessed with not only
         the five faculties of sense
         but the inner three, ruling
         by reason, memory, and will;

which roughly tracks

         bisagra engazadora
         de la que mas se eleva entronizada
         Naturaleza pura
         y de la que, criatura 
         menos noble, se ve mas abatida:
         no de las cinco solas adornada
         sensibles facultades,
         mas de las interiores
         que tres rectrices son, ennoblecida
                            [lines 659-667]

The notion that there are three ``inner senses'' to go with the
five outer ones was new to me, but the commentary ascribes this
to medieval tradition, and names ``understanding, memory, and will''.
The OED cites Hoole (1672), ``The inward Senses are three. The
Common-sense...The Phantasie...The Memory.'' It also cites Locke
for this usage (1690, _Human Understanding_, II.i.4), ``This Source
of Ideas every Man has wholly in himself: And though it be not Sense,
as having nothing to do with external Objects; yet it is very like it,
and might properly be call'd internal Sense. But as I call the other
Sensation, so I call this Reflection.'' OK, this would all be sophistry,
since you meant *outer* sensory experience, but still it leaves me
curious whence comes this notion of an inner three senses.

There's also an objection that isn't sophistry, however, and
I'll repeat it here: As a deterministic explanation of
the Cauchy time-evolution of our world, physics can give
10-decimal-place predictive accuracy. I would submit that
it is a purely empirical observation that the kind of assumptions
usually made to allow one to practice sociology or psychology lead to
no comparable success.
  
                     Mike Morris
           (msmorris@watsci.uwaterloo.ca)
  
  
  
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