Grotius and Locke’s Theories

Compare and contrasts the ways in which Grotius and Locke theorise common property in the state of nature. How do their discussions of common property shape their accounts of the rights of the poor?

This essay sets out to look at the ways in which Hugo Grotius and John Locke theorise common property in the state of nature and to compare and contrast them where appropriate. Although Grotius’ views in general were perhaps somewhat conservative, his ideas were admired and expanded by Locke – a more liberal philosopher. This essay will first look individually at Grotius’ and Locke’s theories on common property, including how they came about. Of course it would be undesirable to discuss common property on its own without looking at its transition into private property and so this will be considered too. The theories will then be compared and contrasted and their accounts of the rights of the poor will be discussed. Both Grotius and Locke set out from the initial viewpoint that God gave the Earth to all men “in common” and this provided the foundation for their theories. They both also agreed in using the state of nature (a world that exists before civil government) as an analytical device and that common property can be used by all to fulfill people’s needs.

Natural rights are rights, freedoms and privileges which are a basic part of human nature and cannot be taken away. Grotius’ idea of natural rights of individuals came about in the early 17th century from the thought that reason and rationality are what separates man from beast. Man therefore seeks society with others and is inclined to behave justly, with justice being a virtue. According to Grotius, people have rights because everyone accepts that each person is entitled to try to preserve themselves and therefore shouldn’t try and harm others or interfere with them. They should also punish any breach of someone else’s rights that arises – allowing property to exist in the state of nature. According to Grotius, God gave the earth as a gift to all men in common. However, how then did individuals come to use and ‘own’ this common land? Grotius used the example of a public theatre to illustrate how the common land can be used by individuals: “Although the theatre is a public place, yet it is correct to say that the seat a man has taken belongs to him”. In this state of nature, it seems that the act of occupying, or simply taking something, creates a right to it. Things became subject to private ownership, “by a kind of agreement, either expressed, as by a division, or implied, as by occupation” which seems to adopt the theory that property of all sorts exists by social contract. However, property regarding the sea is another matter. Grotius (1608) argued that the sea was the common property of all nations and that it must remain so in the same way that everything was common in the state of nature. This theory of property seems to depend on the idea of enclosure – Grotius argued that since the seas cannot be enclosed, they are open to all and no person or national government can restrict the access of another nation to any part of them.

Unlike Grotius, who believed property was gained through agreement, Locke contended that property was appropriated through ‘mixing’ ones labour with it. He provided an account of how material property could arise in the absence of government. Since every man owns his own body and therefore, by extension, his labour,
“[w]hatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property … [that] … no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others”.

However this does not say why an individual is allowed to take from the common. Clearly someone must necessarily be allowed to do so in order to eat and preserve themselves but why would someone else respect that person’s right to that property without a law stating they must? Locke (1690) asserts that there are plenty of resources in the state of nature and so one can take all that they can use without taking anything from someone else. He uses the phrase that one must leave “enough and as good” for others. Additionally, someone can only take as much as they can use before it spoils – but this can be avoided simply by selling everything before it does so with the existence of money; thereby effectively removing this limit. Locke seems to be arguing that a full economic system could, in principle, exist within the state of nature. Property could therefore exist before government, and thus society can be dedicated to the protection of property. In the Second Treatise (1690), Locke claims that civil society was created for the protection of property. He argued that individuals would actually agree to form a state that would provide a “neutral judge”, and that could therefore protect the ‘lives, liberty, and property’ of those who lived within it. Clearly there is a potential for a problem with regards to the idea of “enough and as good” with an increasing population and a constant sized earth. This will be looked at later.

We can now consider the relationship between these two theories of Grotius’ and Locke’s. One important point to note is that both Locke and Grotius held that God had given all things on earth to men “in common” without any special right to anybody. This means that both were working from the same initial starting point; using God as the basis for their theory of property. Like Grotius, Locke sees this as conferring a positive right of ownership to mankind – in other word everyone has a right to everything. Both of their theories differ from the claim that the first man on earth i.e. Adam was in fact given private property by God himself (known as the ‘Adamite’ theory) – Locke states that, “it is impossible that any man, but one universal monarch, should have any property upon a supposition, that God gave the world to Adam”. Believing that God gave the world to everyone as equals places great importance on all men having property – both rich and poor – and perhaps held more influence with society than a purely secular theory. Grotius even uses his ideas of natural rights to try and find a natural law that everyone could potentially accept that would hold even in the face of no God. Like Grotius, Locke views natural law as a universal concept which provides the basis for all human social orders.

While the reasoning behind their theories is similar, Locke’s theory (1690) that property is acquired by application of labour upon resources is in great contrast to that of Grotius (1625), who contended that property emerges out of social consent and basic moral principle through consumption or occupation. For Locke, something becomes private property through expended labour, removing it from the common state of nature. Locke is very clear in pointing out that no one is allowed to take more than his share, and that nothing may be spoilt or destroyed – the amount of resources that can be appropriated are relatively small in relation to the total amount available – at least in theory. However this idea of ‘mixing’ labour with resources in order to own property it is not a very strong one according to Waldron (1990). Nozick also criticized this argument with his famous example of mixing tomato juice that one rightfully owns with the sea. When we mix what we own with what we do not, why should we think we gain property instead of losing it? While this argument is a bit extreme, it is not difficult to see his point – and thus Grotius’ idea of social consent may be a more convincing one. Locke of course disagrees, arguing that a social contract holding in the state of nature is ridiculous. In addition Locke (1690) states that land necessarily needs to become private property to be of use, but this correlation is not necessarily true. Keeping the land as common ground may still be sufficient, albeit not as efficient. Clearly Locke’s theory rests on questionable ground. But what happens when there are not enough resources to go around or someone simply cannot afford the necessary resources to preserve themselves?

With regards to the rights of the poor, Grotius, like Locke did not believe that the state should redistribute property to the poor. In fact this was not really a concept which drew much serious thought until many years later. However both address the issue of preservation. Grotius says that, “in a case of absolute Necessity that ancient Right of using Things, as if they still remained common must revive, and be in full Force”. This ‘right of necessity’ causes the ‘universal use-right’ to be reactivated just as if common ownership had remained. Without the right of necessity as an exception to the laws of private property that forbade theft, Duffel states that the theory would be inconsistent and therefore property rights are not absolute. Thus, Grotius had invoked the ‘principle of interpretative charity’ (which implied an absolute right) to defend the political resistance and common ownership property claims in some extreme circumstance to preserve human life. Locke employed Grotius’ private property arguments to support a far more radical political philosophy. He held that the right to property, even as defined by governmental law, “cannot exclude the natural right every man hath to his own preservation and the means thereof. . . .”. In extreme need the industrious poor were entitled, by the same natural law which bound property, to take ‘the superfluous necessities of life’ from the more fortunate. “God established property to sustain human life, and men in each age must consent to property distributions only if they fulfil their natural function”. We can see that both Locke and Grotius agree that in a situation of need we cannot simply leave the poor or unfortunate to suffer or die – however neither endorses positive duties to help such people.

Further, Locke’s right of charity is a different kind of right from Grotius’s right of necessity. In Grotius’s theory, there are no natural entitlements to preservation whereas Locke’s theory is grounded in a natural right. Grotius admitted that men in “direst necessity” may take what they need from the private property of others, but not because they have any natural right – but because their ancestors could not reasonably be understood to have consented to arrangements that entirely abolish the original use-right in such circumstances. By contrast, Locke simply maintained that each person retained a natural right against others to be provided with the necessities of life. As pointed out by Salter (2001) if Grotius were to say, like Locke, that the acquisition of property merely required the performance of labour of some kind, then those excluded have no claim at all to the means of their preservation. They merely have a right to use a common that no longer exists. As Grotius says, the right of private ownership would have completely “absorbed every right that sprung from a state of things held in common”. Grotius is therefore able to say that a safety net should exist for those in direst need because he understands private property to be conventional – and because he thinks we must consider the intentions of those who first introduced it. Grotius’ reliance on consent and intensions is essential to his theory. Despite this, neither Grotius nor Locke seem to go far enough in regards to the rights of the poor. It would perhaps be desirable for others to have a positive duty to help those without a means of preservation. However this is clearly not plausible in a state of nature as a government would be needed to enforce such a duty.

Haankonssen (1985) argues that although Grotius’s subjective rights theory gave Locke the basis for his theory of property, Grotius would have rejected the consequences that Locke drew from it. While it is true that they both operated with the idea that the law of nature tells us to live socially with others in exercising our natural rights, just what ‘living socially’ means differs between the two, and thus the limits of acquisition are unclear. For Grotius (1625) private property was not limited by any obligations other than those entered into by voluntarily contract as well as not harming others. For Locke (1690), the extent of the obligations carried under natural law by the owners of private property are not clear cut either, other than to say property was not allowed to ‘spoil’. However with increasing populations and wealth comes a disappearance of the common property and potentially unlimited acquisition. As Locke supposes, there will no longer be “enough and as good” left for everyone (as not everyone lives a frugal life), and there could easily be an increase in the number of property disputes in which the title to property is not immediately obvious to everyone. Grotius would likely not have agreed with such a large acquisition of property as seems to be allowed by Locke and as such Grotius’ theory, although not including a natural right to preservation, may be more favourable to the poor.

This essay set out to compare and contrast the ways in which Grotius and Locke theorise common property in the state of nature. Both Grotius and Locke set out from the initial viewpoint that God gave the Earth to all men “in common” and this provided the foundation for their theories from which they both tried to produce a just theory of property. The main differences between the two theories are the rules of property appropriation – Locke’s theory of ‘mixing’ labour with property compared to Grotius’ social agreement – but both allowed some private property in a state of nature where most land was common. Neither Locke nor Grotius had particularly strong rights for the poor as neither endorsed positive duties of charity obliging others to help those who need it (however this is likely not possible in the state of nature). While neither theory is perfect both provided invaluable discussion and progress in the field of justice and distribution of property.

Bibliography

• Duffel, Siegfried Van and Yap, Dennis. 2009. Distributive Justice Before the Eighteenth Century: The Right of Necessity. Academia.edu. [Online] October 8, 2009. [Cited: March 10, 2010.] http://nus.academia.edu/documents/0041/0776/Distributive_Justice.pdf.
• Grotius, Hugo. 1608. Freedom of the Seas (Mare Liberum). 1608.
• -. 1625. The Laws of War and Peace. 1625.
• Haakonssen, Knud. 1985. Hugo Grotius and the History of Political Thought. Political Theory. 1985, Vol. 13, 2.
• Liggio, Leonard P. 1980. Grotius, Locke, and Property. Literature of Liberty. 1980, Vol. 3, 1.
• Locke, J. 1690. Two Treatises of Government. Cambridge: Cambridge University Press (1988), 1690.
• Salter, John. 2001. Hugo Grotius: Property and Consent. Political Theory. 2001, Vol. 29, 4.
• Waldron, James. 1990. The Right to Private Property. Oxford: Clarendon Press, 1990.