Private Property and the Law of Nature in Locke's Two Treatises: The Best Advantage of Life and Convenience

A common account of the distinction between modern and classical regimes holds that classical regimes directly regulate human conduct, seeking to produce citizens consistent with a certain understanding of human virtue or excellence, whereas modern regimes use law only to keep people safe, leaving them free to pursue happiness as each individual understands it. However, such a distinction made with too fine a point neglects that a great deal of policy in modern society indirectly shapes human behavior by altering patterns of incentives and resources. The manner in which behavior responds to a given distribution of resources lies at the heart of economics. How one ought to behave under any circumstances is the subject matter of ethics. Therefore, if altering existing resources for the sake of foreclosing undesirable actions and inducing desirable actions is a goal of public policy, the study of policy necessarily takes place at the intersection of economics and ethics. In modern society, the policymaker's interest naturally turns to the market, and an interest in markets necessarily implies an interest in the private. The venue of market behavior is the private sector and the tools that enable or restrict market activity are, broadly speaking, private property or resources gained through property. More specifically, laws aimed at land use, taxation, regulatory policy, the relationship between employer and employee, and even social programs are all, to some extent, based on formulating rules regarding the acquisition, use, and transfer of property. Such an endeavor implies that those involved in policy making have an empirical understanding of the way existing rules influence behavior and that they have speculative knowledge of how altered rules would bring about better outcomes. Consequently, a great deal of public policy is based on tacit assumptions about the relationship between property and human nature: the policymaker assumes to know the needs that actuate the desire for property in the first place, the expectations regarding property's ability to satisfy those needs, and also the way those expectations shape people's interactions with one another. Yet, there seems to be little agreement on these matters, suggesting inadequate attention to the relationship between human nature and property. The relationship was a matter of great interest to one of the early liberal philosophers, John Locke. However, Locke offered no single, clear articulation of his understanding. Several commentaries reflect the disjointed nature of his presentation. Some note the difficulty in reconciling Locke's empiricist account of human nature in his Essay Concerning Human Understanding with the rationalistic account of ethics in his First and Second Treatises (Dunn 1969; Laslett 1988). These interpretations claim Locke had to depart from his teaching in the Essay in order to establish a better epistemological foundation for his political economy. Another writer attributes the apparent shift from the Essay to the Treatises to Locke's need to ground his political ideas in Natural Law and Christianity (Ashcraft 1986). Only one interpretation attempts to reconcile Locke's empiricism and his rationalism (Myers 1998), offering a much needed correction to John Yolton's interpretation of the Essay (1956, 1970). Yet the argument is confined to connecting the Essay's empiricism and the Treatises' politics, offering scant attention to the difference between the two accounts of human nature and ethics. Others have focused on the relationship between Locke's ethics and political economy within the Treatises, setting aside their relationship to the Essay. In this literature, the task becomes one of finding consistency between Locke's appeal to the Law of Nature and his account of private property. Some make the connection through a communitarian interpretation of Locke's doctrine of property, beginning with Tully (1980) and further developed by Sreenivasan (1995) and Kramer (1997). …