While many libertarian and Austrian economists prefer more modern theories of homesteading and natural property rights, most of these seem to trace their intellectual heritage back to John Locke's Second Treatise of Government, from 1690. While respecting that Locke does not represent most modern views, I believe it is important that to examine Locke's theories not merely on a theoretical level, but with a view in mind of historical events that Locke himself could not have predicted or may not have had knowledge of. We will also make reference to to the competitor of Locke, Thomas Hobbes, whose Leviathan was published in 1651.
Setting the stage
When read without historical context, particularly from the perspective of someone still idealistic and full of hope regarding the nature of their fellow human beings, Chapter II (audio) appears fairly reasonable, though I would draw your attention, dear reader, to the following quotation:
"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: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another."I put forth the question, can "no one ought to harm another in his life, health, liberty, or possessions" and "Every one, as he is bound to preserve himself, and not to quit his station wilfully" always be self-consistent? That is to say, can a person always refrain from harming others in "life, health, liberty, or possessions" and at the same time "preserve himself, and not quit his station wilfully"? (I realize that some may be thinking that Locke is objecting to voluntary suicide, and well he might, but since it is not what I am trying to discuss right now, consider "bound to preserve himself" as the natural survival instinct that most life forms have, i.e., consider this in the context of those of us who want to live.) Is "when his own preservation comes not in competition" a brief nod to the possibility that these two goals may not always be simultaneously possible?
Also I call to your attention to:
"And in the case, and upon this ground, EVERY MAN HATH A RIGHT TO PUNISH THE OFFENDER, AND BE EXECUTIONER OF THE LAW OF NATURE.
Sect. 9. I doubt not but this will seem a very strange doctrine to some men: but before they condemn it, I desire them to resolve me, by what right any prince or state can put to death, or punish an alien, for any crime he commits in their country. It is certain their laws, by virtue of any sanction they receive from the promulgated will of the legislative, reach not a stranger: they speak not to him, nor, if they did, is he bound to hearken to them. The legislative authority, by which they are in force over the subjects of that commonwealth, hath no power over him. Those who have the supreme power of making laws in England, France or Holland, are to an Indian, but like the rest of the world, men without authority: and therefore, if by the law of nature every man hath not a power to punish offences against it, as he soberly judges the case to require, I see not how the magistrates of any community can punish an alien of another country; since, in reference to him, they can have no more power than what every man naturally may have over another."
And here we see not only reference to punishing an "alien", someone who is not a member of the society in question, but specifically an "Indian" -- not merely an immigrant who it might be hoped would put some effort into learning the local culture enough to avoid major conflict, but an Indian (by which Locke most likely means an American Indian), presumably on their own cultural territory still. So I ask you, is there any "law of nature" so basic, so innate within all humanity that even a total stranger, though he may not speak our language or know our ways, though we may have appeared uninvited by either him or his tribe on their territory, can be expected to share this understanding and engage with us accordingly, and if so, does Locke accurately describe this "law of nature"?
Looking at Chapter III (audio), we see Locke start off with a great deal of certainty about what constitutes a declaration of war, and transition into uncertainty regarding people's ability to determine for themselves what counts as such a declaration, ending with, "of that I myself can only be judge in my own conscience, as I will answer it, at the great day, to the supreme judge of all men."
I draw the reader's attention to this passage near the middle:
"Sect. 18. This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it."
A few points -- the use of the word "force" is vague here. The use of the world "force" and related terms such as "aggression" and "coercion" in philosophy have changed over the years and from one philosopher to the next. The first instinct of many modern readers may be to assume a more modern definition, which often includes force against property including by stealth and some types of fraud. However, it is possible Locke is using an older definition, closer to what we see in Hobbes' Leviathan in "Totall Excuses" and "Crimes Against Private Men Compared", in which Hobbes lists the taking of food by force or stealth as two separate possible methods, and, when discussing the "spoyling a man of his goods" makes clear distinction between the methods "by Terrour of death, or wounds", "clandestine surreption" and "consent fraudulently obtained", the "force" discussed in the earlier section presumably referring to "by Terrour of death, or wounds".
"Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge."
This would seem to suggest an older, less modern use of the definition of "force", though I may be misreading, as that would leave open the question of how, without "appeal to the law", Locke intends to deal with the question of one who has "stolen all that I am worth" by stealth or fraud already.
"But when the actual force is over, the state of war ceases between those that are in society, and are equally on both sides subjected to the fair determination of the law; because then there lies open the remedy of appeal for the past injury, and to prevent future harm: but where no such appeal is, as in the state of nature, for want of positive laws, and judges with authority to appeal to, the state of war once begun, continues [...] until the aggressor offers peace [...]"
This might bring us back to the suggestion of possibly a more modern definition of "force"... perhaps Locke only meant for us to "appeal to the law" regarding past theft by stealth or fraud in the event there was an actual law to appeal to, for, without it, the state of war would continue. Indeed, scrolling back up to Chapter II would seem to confirm the more modern interpretation.
Putting aside for a moment what Locke actually meant by "force" and "aggressor", especially considering he himself seemed a bit uncertain of a person's ability to judge, consider for a moment whether the concept of "theft" and the implication of property rights is so universal that even an outsider to our culture, a total stranger, who may not speak our language, can be expected to understand, especially if we include "theft by stealth" of goods we are not actually watching over. And the reverse... might we steal that which is his without knowing that we have done so? Is Locke right to assume that a state of peace, rather than a state of war, is the default between people in the state of nature, and that war, being the non-default, necessarily contains the concepts of an aggressor and an innocent party?
Going over Chapter IV (audio), we see a more narrow definition of slavery than that which some more modern philosophers use (which is why in more modern discourse many of us now use the term "chattel slavery" to discuss what earlier philosophers might've simply called "slavery"). The distinction Locke makes between "slavery" and "drudgery" is not dissimilar to the distinction Hobbes makes between a slave/captive and a servant in "Despoticall Dominion, How Attained" and "Not By The Victory, But By The Consent of the Vanquished" in Leviathan. Locke's description of slavery is a bit more theoretical, "under an absolute, arbitrary, despotical power", whereas Hobbes is more graphic, "that work in Prisons, or Fetters, do it not of duty, but to avoyd the cruelty of their task-masters". Both agree that no contract to enter into the condition of slavery is valid. Both agree that the condition may be ended by some sort of contract, which must meet certain minimum standards to be valid, i.e. not leave the surrendering party in the condition of slavery. (More on that in a bit.) What is perhaps of more significance is the emphasis Locke places on the concept of a "lawful conqueror". See here:
"Indeed, having by his fault forfeited his own life, by some act that deserves death; he, to whom he has forfeited it, may (when he has him in his power) delay to take it, and make use of him to his own service, and he does him no injury by it: for, whenever he finds the hardship of his slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw on himself the death he desires.
Sect. 24. This is the perfect condition of slavery, which is nothing else, but the state of war continued, between a lawful conqueror and a captive"Hang on a moment here. Why should we assume that the "lawful" side should emerge the victor, what do we mean by "some act that deserves death", and, if someone has indeed done "some act that deserves death", do we really expect his cooperation, and what benefit would be served by enslaving him rather than other penalties? By, "some act that deserves death", do we mean murder or the theft of a piece of fruit? (Or perhaps, as some of his readers might have supposed, not being Christian or not being white?) One would hope for something like "murder" being "some act that deserves death", but, Locke's previous chapters might suggest the stealing fruit to be sufficient. Certainly, an attempt to enslave a serial killer is unlikely to be profitable or even safe. At first glance, this could be a mere justification for "prison labor" (i.e. of convicted criminals), which many more modern philosophers who otherwise oppose slavery don't always seem to object to, but then why do we not see, in this section, discussion of wrongfully captured people? (To be fair, Locke does go on about just and unjust wars in Chapter XVI, but I think it's telling that, in the chapter on slavery, he assumes that the "just" side is victor.)
Okay, history. Locke published this in 1690. The transatlantic slave trade started perhaps around 1501, sooner if we count Columbus sending back American Indians as slaves. The first African slave ship to Great Britain might've been in 1556. The first to the present USA, around 1645. So, by the time Locke wrote this, the transfer of black slaves from Africa, including to Great Britain and the American colonies, had been going on for decades. Also, I would like to point out that captives who tried to choose death over slavery were often force fed. Locke was apparently an investor an the Royal African Company, a slave-trading organization, and played some role in drafting the Fundamental Constitutions of Carolina. "Every freeman of Carolina shall have absolute power and authority over his negro slaves, of what opinion or religion soever." There is some confusion over the exact extent of Locke's hand in writing the Fundamental Constitutions of Carolina, but I think what we are seeing here in his Second Treatise is not a rationale for prison labor of a convicted criminal, but rather, an attempt to dehumanize people to justify the cruelty of slavery. I am not quite sure what mental hoops Locke jumped through to convince himself that people from Africa deserved this fate, but I think that we should take to heart one of the dangers of excessive idealism -- that of arrogance, the overconfidence of assuming that we are right and those we hurt are wrong, the danger of rationalizing rather than confronting our flaws. Any time idealism is used for dehumanizing purposes, it is a warning, that we should be cautious, for we have probably gone down the wrong path. It's quite a shame, really, since one would think from having read Locke's First Treatise, and even other portions of his Second Treatise, that he would've been an abolitionist, and indeed, many actual opponents of slavery have quoted from him. Indeed, it is perhaps because we can quote Locke's own words against his actions, as seen below, and the flaws in his text such as we see above are difficult to spot, that Locke has continued to inspire many men and women who were far more enlightened than he himself was.
"Slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation; that it is hardly to be conceived, that an Englishman, much less a gentleman, should plead for it." -- Locke's First Treatise
On the other side of the table, representing realism rather than idealism, we have Hobbes, who, when discussing the issue of slavery, skips the question of who is just and who is unjust, and reaffirms the right of the captive to resist: "a Captive, which is kept in prison, or bonds, till the owner of him that took him, or bought him of one that did, shall consider what to do with him: (for such men, (commonly called Slaves,) have no obligation at all; but may break their bonds, or the prison; and kill, or carry away captive their Master, justly". Now, Hobbes is hardly in line with more modern philosophies... for example his idea that a covenant made under severe duress is still valid (provided the severe duress ceased), his faith in the monarchy to establish peace between people, and his reluctance to try to appeal to people's better nature rather than simply accepting that people will do awful things given the opportunity... but for all that, his realist heart was faster to affirm the right of the captive to resist, by whatever means, than Locke's idealist heart. In terms of practical advice to one facing enslavement, death, or other violence, Hobbes has more to offer to such a person than Locke in his Second Treatise does.
Locke's fifth chapter, Of Property (audio), is probably nearest and dearest of all his work to modern right-wing libertarians and Austrian economists. It is quite possible that some have only read this section, or such portion of it as was quoted by other philosophers, and thus missed that troublesome defense of slavery in Chapter IV.
In any case, Chapter V looks beautiful on paper. If we had a great area of unclaimed land and a number of people, and all the people assented that they thought this was a good way of dividing the land, or at least an acceptable compromise, and there was plenty for all to carve out a sufficient portion to live on without fear of being crowded out, it would be a fine system indeed. It is a more enlightened system of land distribution than the idea of divine right, such as Locke refutes in his First Treatise, and that of government right, such as we see today where deeds to land are traced back to the government, which usually profits off of their sale and continues to tax them, and may be revoked by the government at any time.
But we aren't actually talking about unclaimed land. There were already American Indians there. Consider, for example, the history of English interactions with the Wampanoag, which was already well in progress by the time Locke published his Second Treatise. Let's see... "Like other Algonquin in southern New England, the Wampanoag were a horticultural people who supplemented their agriculture with hunting and fishing." So much for Locke's claim that the American Indians left the land an "uncultivated waste".
Let's read more closely for references in this chapter to the American Indians and their management of the land, shall we?
"for I ask, whether in the wild woods and uncultivated waste of America, left to nature, without any improvement, tillage or husbandry, a thousand acres yield the needy and wretched inhabitants as many conveniencies of life, as ten acres of equally fertile land do in Devonshire, where they are well cultivated?"
"There cannot be a clearer demonstration of any thing, than several nations of the Americans are of this, who are rich in land, and poor in all the comforts of life; whom nature having furnished as liberally as any other people, with the materials of plenty, i.e. a fruitful soil, apt to produce in abundance, what might serve for food, raiment, and delight; yet for want of improving it by labour, have not one hundredth part of the conveniencies we enjoy: and a king of a large and fruitful territory there, feeds, lodges, and is clad worse than a day-labourer in England."
"An acre of land, that bears here twenty bushels of wheat, and another in America, which, with the same husbandry, would do the like, are, without doubt, of the same natural intrinsic value: but yet the benefit mankind receives from the one in a year, is worth 5l. and from the other possibly not worth a penny, if all the profit an Indian received from it were to be valued, and sold here; at least, I may truly say, not one thousandth."
What we're seeing here isn't an argument in favor of the original homesteader. What we're seeing here is an argument in favor of eminent domain. Indeed, if you look below, Locke seemed intent on convincing others that this claim of eminent domain was harmless, for there was plenty left still for everyone else, even going so far as to claim that the eminent domainer was giving to some nebulous "mankind". A utilitarian argument. Don't get me wrong, I'm not totally against utilitarian arguments, especially where we're trying to calculate the number of lives we can save from some misfortune, such as war, but as an argument for eminent domain, it is highly suspect.
"Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all. No body could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same."
"And therefore he that incloses land, and has a greater plenty of the conveniencies of life from ten acres, than he could have from an hundred left to nature, may truly be said to give ninety acres to mankind: for his labour now supplies him with provisions out of ten acres, which were but the product of an hundred lying in common."
Looking again at Wampanoag history, early contact between the Wampanoag and the English appears to be relatively friendly (Thanksgiving is in honor of Wampanoag generosity), though not without complications and disaster -- most significantly, epidemics which wiped out a great number of Wampanoag. In so far as disease and sanitation were most likely poorly understood back then, we can at least assume that the disease was not intentional until we see evidence to the contrary. Relations appear to have deteriorated starting with the arrival of the Puritans. Of note:
"After eating a meal in Duxbury, Alexander became violently ill and died. The Wampanoag were told he died of a fever, but the records from the Plymouth Council at the time make note of an expense for poison "to rid ourselves of a pest." The following year Metacomet (Wewesawanit) succeeded his murdered brother as grand sachem of the Wampanoag eventually becoming known to the English as King Philip." -- Lee Sultzman (Alexander and Philip were Wampanoag with English names.)Relations between the English settlers and the Wampanoag, and, perhaps more to the point, tribes who heeded the Wampanoag's warming (seeing as how there were very few Wampanoag left at this point due to all the disease) deteriorated into war. However, even those who had adopted English ways were not spared.
"Particularly disturbing to the colonists was the defection of most of the "Praying Indians." When Puritan missionaries attempted to gather their converts, only 500 could be found. The others had either taken to the woods or joined Philip. Their loyalty still suspect, the Praying Indians who remained were sent to the islands of Boston Harbor and other "plantations of confinement." -- Lee SultmanPlantations of confinement... so reward for loyalty to the English was enslavement.
"At the outbreak of the fighting, the Narragansett had gathered themselves in single large fort in a swamp near Kingston, Rhode Island. Although it appeared they were on the verge of annulling their treaty with the English and entering the war on the side of Philip, the only thing they had been guilty of during the first six months of the conflict was providing shelter for Wampanoag women, children, and other non-combatants. In December of 1675, Governor Josiah Winslow of Plymouth led a 1,000 man army with 150 Mohegan scouts against the Narragansett. The English demanded the Narragansett surrender of any Wampanoag who remained and join them against Philip. When this was refused, the English attacked. Known as the Great Swamp Fight (December 19, 1675), the battle almost destroyed the Narragansett. In all they lost more than 600 warriors and at least 20 of their sachems, but the English also lost heavily to and was in no condition to pursue the Narragansett who escaped. Led by their sachem, Canonchet, many of the survivors joined Philip at Hoosick." -- Lee SultmanSo, the English attacked the Narragansett for sheltering non-combatants. And this was in 1675, 15 years before the publication of Locke's Second Treatise. So, the American Indians by this time had plenty of reason to not want to allow the English to continue "homesteading" on their territory. Reasons Locke makes no mention of. Did he not do his research? Was he simply to arrogant to question whatever distorted version of events he read courtesy of English propaganda? I have no idea. Certainly, it would not be the first time he showed exceedingly poor judgement, considering that travesty in Chapter IV.
Let's take a further look at Narragansett history, shall we? This tribe had previously arisen as the dominant tribe since they weren't as hard-hit by European diseases as the others, and had forced the Wampanoag to pay tribute. It should say something that they ultimately united against the English. This was not a tribe of pacifists, but it would seem that though the tribes of the area did war with each other, there was some code of honor between them, some depravities they considered wrong, and that the English crossed the line, causing former enemies to unite against them or at least offer shelter to non-combatants and survivors. This theme appears to be continued with, "Even Uncas and the Mohegan took pity on what had befallen their Narragansett enemies and allowed some of them to settle in their Connecticut villages after the war."
As those of European heritage expanded further west, they encountered further opposition. The Bureau of Indian Affairs was created in 1824 as part of the U.S. War Department. War, you know, that one issue so close to the hearts of so many libertarians, greens, and other types of pacifists/pseudo-pacifists that we often put aside our other disagreements to go protest against it. Upon encountering the Sioux and other plains Indians, we see the 1851 Treaty of Fort Laramie. Which apparently not all tribes signed on to and which settlers more or less ignored. The history of interactions between the US settlers and the Lakata, Dakota, Nakota (Sioux tribes) and other plains Indians is long and relatively well documented, but let's look at how the Plains war started.
It seems there was some cow that was killed and a bunch of soldiers got riled up over it and went to a nearby Indian camp seeking satisfaction. There was some attempt at negotiation. When asked why they had killed the cow, one of the Mniconjous replied, "It is a fact. Last year, the soldiers killed three of us and again this year, as we sat by the side of the road, an emigrant shot at us and hit a child in the head with a small ball (bullet)..." So, soldiers/settlers had killed four of the Mniconjous, including a child, and they retaliated by killing a cow. Which the Indians offered to pay for with a horse. Conquering Bear, the chief, refused to hand over the cow killer, and the soldiers shot someone, causing the Indians to retaliate by killing all the soldiers. For their part, the soldiers took Conquering Bear with them. This was called the Grattan massacre caused a wave of anti-Indian sentiments, leading to the Blue Water Creek massacre, where US soldiers killed Lakota men women and children indiscriminately, and thus began the Plains wars. For a more comprehensive history of our interactions with the Lakota and other plains Indians, feel free to check out the documentary Red Cry, Aaron Huey's lecture, and the Republic of Lakotah website.
None of this bears any resemblance to the idealist picture Locke paints of plenty of land and natives living in an idealized state of nature who won't mind being brought into an idealized commonwealth instead. And yet even after much of this already panned out, people were still hanging onto the idea that the natives had no right to the land because they allegedly weren't making full use of it. For example, Ayn Rand, considered by many to be a type of libertarian, once said,
"I do not think that they have any right to live in a country merely because they were born here and acted and lived like savages. Americans didn’t conquer; Americans did not conquer that country." -- Ayn Rand
I would also like to point out that the height of agricultural technology was reached, not by Western civilization, but by indigenous Amazonians hundreds or thousands of year ago. Unfortunately, the technology, terra preta, was lost when most of the people inhabiting the area were wiped out by European disease and archaeologists are still trying to figure out how to replicate it.
Locke, in his world, paints a world that doesn't exist, and societies who don't exist. Where land is scarce, Locke makes it sound is if there is plenty for all. Where the Indians did in fact have agriculture and some sort of concept of land ownership or stewardship or something, he makes it sound as though they had no legitimate claim on the land. Where white settlers were interested in taking away as much as they could for themselves, Locke made it sound as if all would benefit. To be fair, Locke did discourage waste, something which has been grossly ignored (mass slaughter of the buffalo, for example). And, on the question of whether Locke's system of homesteading is something sufficiently innate in human nature as to be understood by members of different cultures and languages without negotiation, the answer is clearly a resounding no.
For comparison, we have Thomas Hobbes' advice:
"The multitude of poor, and yet strong people still encreasing, they are to be transplanted into Countries not sufficiently inhabited: where neverthelesse, they are not to exterminate those they find there; but constrain them to inhabit closer together, and not range a great deal of ground, to snatch what they find; but to court each little Plot with art and labour, to give them their sustenance in due season. And when all the world is overchargd with Inhabitants, then the last remedy of all is Warre; which provideth for every man, by Victory, or Death."
Not exactly the strong anti-war message we might hope for, but comparatively speaking, "they are not to exterminate those they find there; but constrain them to inhabit closer together, and not range a great deal of ground" would, if followed, most likely have lead to a more peaceful historical outcome than what we witnessed.
This is, in many ways, a lesson in the dangers of idealism. When one imagines a beautiful, utopian world, and tries to impose that vision on the real world, the results tend to be quite dystopic. If someone would try to be more idealistic, perhaps it would be better to focus on trying to discourage the flaws in the human heart rather than re-imagining the fabric of the physical world.
In many ways, the most interesting parts of Locke's theory are the corollaries. "Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use." Corollary: If there's not enough and as good left for the "yet unprovided", they might be able to claim prejudice. "No body could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same." Corollary: If someone steals or pollutes the whole river, then others might be able to think themselves injured. Also of interest, "As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in: whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy." Huh, perhaps folks should've read that passage before killing the buffalo en masse. Also, from his first treatise, "and how will it appear, that propriety in land gives a man power over the life of another? or how will the possession even of the whole earth give any one a sovereign arbitrary authority over the persons of men? The most specious thing to be said is, that he that is proprietor of the whole world, may deny all the rest of mankind food, and so at his pleasure starve them, if they will not acknowledge his sovereignty, and obey his will".
P.S. If it wasn't obvious already, I am green, not libertarian.