John Locke's Use of Classical Legal Theory Author(s): Roger T.

Simonds Source: International Journal of the Classical Tradition, Vol. 3, No. 4 (Spring, 1997), pp. 424432 Published by: Springer Stable URL: http://www.jstor.org/stable/30222299 . Accessed: 22/08/2013 09:57
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John

Locke's

Use

of

Classical

Legal

Theory

ROGERT. SIMONDS
undermines the John Locke's chapter on property in the SecondTreatise of Government feudal theory of tenure and liegnancy prevailing in English law and restores classical allodial natural property rights to all individuals. Then, in order to explain the transformation of common property into private property, Locke proposes his "labortheory" of whatever common property I "mix"my labor with becomes private propappropriation: erty. This is a ratherstrained adaptationof the classical legal theory of the ownership of mixtures and merged entities, which can be found in Justinian'sInstitutesand Digest. Although Locke's earlier writings show no familiarity with legal literature except for Grotius and Pufendorf,at the end of his life he consciously applied classical theory while avoiding the appearanceof doing so by adaptingit to the Protestantconcept of labor as an intrinsically valuable activity and transformingthat activity into a quasi-materialentity capable of combinationwith other materialentities. John Locke's most importantcontribution to political philosophy is his justification of limited parliamentary government based on the need to protect property rights or, as we prefer to say now, civil rights or human rights. In providing an explanation of the origin of private property, he reproduces the effect of the classical Roman theory of property, although he does not use the classical terminology, for reasons which I will discuss. He does give ample hints as to his reliance on parts of the classical theory. Locke's argument about property rights appears in the famous fifth chapter of the second book of his Two Treatises of Government. There he claims that although God gave the earth and all its contents to men in common, every man may appropriate and thus convert into his own private property whatever he needs for his survival, or within limits, whatever he wants for his enjoyment. The crux of the argument is the particular device by which Locke proposes to explain this conversion of common property into private property. An object of common property becomes mine, he says (2.27),' when I "mix" or "join" my labor with it. This astonishing metaphor, which treats labor as a space-occupying material obto be combined with other such objects, has excited a lot of comment but no ject satisfactory explanation,2 so far as I am aware. That labor should be dignified and 1. in this paper are parenthetical,beginning with the number Referencesto the Two Treatises of the treatise (1 or 2) and followed by the paragraphnumber. Parentheticalreferencesto other works are by page number. An early example is David Hume: "Somephilosophersaccount for the right of occupation, saying, that every one has a property in his own labour;and when he joins that labour to

2.

The last institutional affiliationof the late Roger T. Simonds (1929-1995)was with the Department of Philosophy and Religionat The AmericanUniversity,Washington,DC, USA.

International Vol.3, No. 4, Spring1997,pp.424-432. Tradition, Journal of theClassical

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valuable for Locke is no mystery, given his early Puritan upbringing and political sympathies.3That my labor belongs to me, assuming that we rule out slavery, is not controversial, although the exact sense in which we can regard it as property needs definition. But that labor should be treated as a materialobjectseems hardly plausible. If indeed it is property, it does not follow that it must be material property. We have various kinds of immaterialproperty,such as copyrights,trademarks,and patents. Locke assumes also that the products of my labor belong to me, and in an earlier passage he gives it a theological application: For men being all the Workmanshipof 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 anothersPleasure.(2.6) Thus, God himself is a laborer,in creatingthe world, and his dominion over the world is justified by that fact. The world, including mankind, is God's work-product. The way in which Locke later applies this labor theory to human property is somewhat similar but differs at two importantpoints. First,the human "person"is said to be the property of the man, although the man is the property of God. Secondly, the things which are to become my private property are not only those things which I have created, if any, but those things with which I have mixed or joined my labor. First,as to the human person: Though the Earth, and all inferior Creaturesbe common to all Men, yet in his own Person.This no Body has any Right to every man has a Property but himself. (2.27) Here it is quite clear that by "person"Locke means "body,"which is still one of the common uses of the word "person";but by "body," in this particular context, he means the same thing as "man"or "self."It is the "man"that owns the "person,"and that man is "himself"and no other "body." To avoid confusion, we have to rememberthat Lockeis a psycho-physical dualist: he regards the living human being as an interactivecombinationof body and mind,4 and it is this interactivecombination,or couple, that is God's work-productand property. Yet that fact does not prevent the man from having property of his own, and his first item of property,on which all else depends, is his materialbody itself. My body is my own private property, as long as I live, being the gift of God. It is also inalienable, however, since if I were to dispose of it I would be violating the divine property right in the psycho-physical couple that is myself. Notice that it would not be enough to say that I have only some sort of feudal tenure or temporaryuse in my body, for in that of the whole;But... We cannotbe said to join our any thing,it gives him the property labour in anythingbutin a figurative sense.Properly we onlymakean alteration speaking, on it by ourlabour" (505,note). 3. Thenoveltyof Locke's attitude towardlaboris notedby Polin(262), who alsocompares it withtheviewsof Hobbes, and Grotius, Pufendorf, Petty, Harrington. 4. Lockegives an extensivediscussion of thispositionin the Essay, book2, chapter 23, espe15to 36. ciallyparagraphs

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case the whole argument to establish private property rights over other objectsbreaks down. I must own my body in order to own my labor, and I must own my labor in As Locke puts it elsewhere, "Man [is] Master of himself, order to own anything else.s5 of it" (2.44). his own and Proprietor Person,and the actions or Labour of of into conversion common as to the private property: property Secondly, The Labourof his Body, and the Worksof his Hands, we may say, are properly his. Whatsoeverthen he removes out of the State that Nature hath with, and joyned to it provided, and left it in, he hath mixed his Labour it makes his and that is his own, thereby Property.... For this something of the no Man but he the Labour Labourer, being unquestionable Property 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. (2.27) In the state of nature--for example, in the hypothetical absence of civil or political society--all the contents of the world (except for individual live human bodies) are the common property of everyone. But Lockeis carefulto say that the state of nature is not a mythical pre-political state of affairs. It is rather that legal relationship between individuals which is independent of whatever political conventions or organization may govern them. Thus, as he points out, the rulers of different governments are in the state of nature relative to each other; and traders from different countries may enter into binding contractualagreements while remaining in the state of nature relative to each other (2.14).Although Locke does not say so, it seems to follow that even individuals belonging to the same political society may be in the state of nature relative to each other with respect to those entities and relationsnot regulatedby the laws of that society. For example, legislation does not ordinarily determine what specific portions of air citizens shall breatheor what specific portions of water they shall drink. These materials remain common property until they are appropriatedby breathers and drinkers. The act of appropriationitself is what Lockecalls mixing or joining laborwith the object.But obviously, as many of Locke'scriticshave complained, startingwith David Hume, labor is not literally the sort of thing that can be mixed or joined with anything. If we think of labor as mechanical exertion, or force, we can say that it is applied to some objectat a particulartime and place. In that case, accordingto classicalNewtonian mechanics, the object itself exerts an equal and opposite force on the laborer,yet we would hardly grant that the objectthereby exerts labor. The reason is that labor is not merely an application of force; it requires an act of will or intention, an element of subjectivity.All the more doubt, therefore,that we can speak of mixing or joining such a thing with inert materialslike air and water. Moreover,we do not actually measure labor in terms of the quantity of physical force exerted but ratherin terms of the time required to complete a task. Now, if Locke had wanted to make explicit use of classical legal doctrine, he and Digestof could have found a much simpler solution to his problem in the Institutes 5. James (105ff.).Butthereare is my property but not my person, Tullythinksthatmy labor,
I must be understood several explicit statementsto the contrary.For example:"ByProperty Persons as well as have in their which Men in to mean that as other here, Property places, Goods" (2.173).

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Justinian.According to classical theory, that which is no one's property (resnullius),in some cases, and that which is everyone's common property (res communisomnium), becomes my private property when I take possession of it. This is called "natural possession," and according to Nerva the younger, as reported by Paul in the Digest (D.41,2,1),it is the origin of all ownership. As examples, he mentions "things captured on land, in the sea and in the sky."6 Why did Locke not avail himself of this classical theory? We know that he had contemporaryeditions of Roman law texts in his libraryat the time of his death.7He did not have standard English legal texts, such as Plowden or Coke or Fitzherbert, though he did have the small legal dictionaries of Cowell and Rastell. He does not avail himself of native English or law-French terminology. He was well acquainted with the writings of Grotius and Pufendorf, but both of them diverge from classical theory on the topic of naturalpossession. There is no doubt that he was familiarwith the word "possession,"since he uses it many times in the later parts of the second Treatise, including parts of the chapteron he Yet it remains unclear that is that term in its classical sense, that is property. using the occupancy or defactocontrol over something as opposed to the proprietaryright of ownership. Sometimeshe combines those two meanings, that is possession defactoand rightful occupancy or possession dejure. Referringto the natural limitations or "measures" on the acquisition of things, which demand that we acquire only what we can use without waste or spoilage, he says, "The same measures governed the Possession of Landtoo" (2.38).The Oxford English Dictionarycites this passage as an example of the classical use of the word "possession,"but I think not. In the very next sentence we read: But if either the Grass of his Inclosurerotted on the Ground, or the Fruit of his planting perished without gathering, and laying up, this part of the Earth, notwithstanding his Inclosure, was still to be looked on as Waste, and might be the Possession of any other. (2.38) Here the word "possession" obviously carries the sense of legitimate ownership, or possession de jure, not the classical sense. The same remark applies to many of the other appearancesof that word in the Treatise, although there are a few instances to the describes "the that Thus Locke Hare any one is hunting" as "a Beast that is contrary. still looked upon as common, and no Man's private Possession" (2.30).Here "possession" means property. Yet he also says that the invention of money, "and the tacit Agreement of Men to put a value on it, introduced (by Consent) larger Possessions, and a Right to them" (2.36). Here "possession" is defacto. So we must conclude that Locke'suse of this term is woefully inconsistent. The reason for this inconsistency, I suggest, is that it reflects the fact that English legal theory and custom in Locke's time did not clearly distinguish possession from ownership in the classical manner. After the Norman conquest of 1066, all private allodial property (that is, absolute private ownership of land) in the realm was abolabeo quiei tenetur 6. Possessio est,ut et Labeo ait,a sedibus positio, quasi quianaturaliter appellata Nerva dicunt. rerum ex naturali Graeci insistit; coepisse Dominiumque possessione quam acazoXyv nam in terra ait rei his, remanere maricaeloque quae capiuntur; haec filius eiusque vestigium eorum possessionem adprehenderint. quiprimi protinus eorumfiunt,

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ished, and all land except for that of the church became the property of the crown. Henceforth there were no longer any private landed proprietors,only tenants of the king or of his vassals. The technical term for this kind of tenure was "seisin,"a word which combined and conflatedthe concepts of possession and ownership. In the course of time, various devices for reintroducingthe classical distinction evolved, but not the classical terminology.8 It would have been politically incorrectfor any English Protestantwriter of the seventeenth century to make overt use of Roman civil or canon law language, even though at the same time the English courts were quietly taking over and translating into the vernacular many of the essentials of Roman jurisprudence.9Denigration of Roman and canon law, and of civilian practitioners,was a majortactic in the rhetorical battles between the partisans of Parliament and partisans of the Crown during the early Stuart regimes. Roman law was thought to justify despotism.10After the Commonwealth and Restoration, this particular issue disappears, since civilian learning and practiceis no longer a credible rival or threatto the supremacy of Parliamentand the common law. What Locke does in his political writings was considered dangerous or even treasonous by royalists, because by arguing for a revival of allodial property rights he undermines the legal basis of the theory of absolute royal powers and prerogatives. Of course, he is also proposing to limit the powers of Parliamentfor the same reasons, which probablyaccounts for the fact that his views never had the strong influence in England that they enjoyed in the Americancolonies. It is not surprising, then, that Locke does not avail himself explicitly of the most obvious classical solution to the problem of justifying the conversion of common property into private property. Yet by introducing the metaphor of mixing labor with material things he tacitly relies on the Roman tradition in a different way, that is, on the theory of the legal ownership of mixtures. This theory was available to him in the same sections of the Institutesand Digest that contain the doctrine of natural possession. According to classical theory, if two batches of the same kind of material,belongto two different owners, are mixed together in such a way that they cannot be ing separately identified, then the two original owners become joint owners of the mixture, and the materials can be parceled out to them in proportion to the relative volumes or weights of the originalbatches (D.6,1,3,2)."So, if ten pounds of my grapes are mixed with twenty pounds of your grapes, and we have no way to tell which grapes belong to which batch, I can reclaim ten pounds of the new mixture and you can reclaim twenty. The situation is different if the originalbatches consist of different
7. He had Everard,Lociargumentorum juris (1665);Corpus legales(1604);Gothofredus,Manuale

andLaslett. SeeHarrison and1647). Institutiones iuriscivilis(1663); (1553 Justinian, 11-13and 516ff. Also 580-82for see Plucknett, 8. Forthe legaleffectsof Norman feudalism, burdensof the "feudalincias a way of avoidingthe financial the deviceof enfeoffment to the doctrine of seisin. dents"attached law on theEnglish of Roman fortheinfluences 9. SeePlucknett, 297-300, legalsystem. Forexample, of an all-powerful the existence textspresume 10. Theclassical D.1,3,31 emperor. solutus laws)do not applyto him; est)seemsto say thatthe laws (orcertain (Princeps legibus himself.
and D.1,4,1 (Quodprincipiplacuit,legis habetvigoremn) gives him the power to make laws by ut deduci est atquecommixtum, naturae est ita confusum 11. Pomponius scribit,si quidquodeiusdem et separari nonpossint,nontotum,sedproparteessevindicandum ....

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kinds of materials which become fused, by chemical or metallurgical action, so that they can no longer be separated,and the fusion has createda new entity differing from both of the original materials. Some jurists thought that this new entity would be common property, but the prevailing opinion was that it would not. According to and Gaius (D.41,1,7,7),13 the maker of the fused entity is the legitiUlpian (D.6,1,5,1)12 or owners of the not the owner mate owner, original materials.The argument is that this new entity did not previously exist in the world, while the original materialshave ceased to exist. Thus, if I mix my honey with your wine and make mead, the honey and the wine no longer exist as separateentities, and I am the proprietorof the mead. Before I created it, the mead was res nullius, nobody's property. It did not exist in rerumnatura.By mixing something of mine with something of yours, I have made something new that belongs to me as its first occupant or natural possessor. It goes without saying that this fact does not relieve me of responsibility to compensate you for the use of your wine. Or suppose that I have a bronze statue which lacks an arm, and I attach to it a bronze arm belonging to you. If the attachment is by soldering the arm remains your property while the rest of the statue is mine. The (plumbatura), reason is that in this case the arm can easily be identified and detached without disturbing the integrity of the original statue. But if the attachment is by welding we can no longer determineexactly where the arm ends and the body of (ferruminatio), the statue begins; the arm has become an integral part of the whole, which belongs to me.14 Locke apparentlythought he could exploit this theory for his purposes, given his bold use of the metaphor of mixing and joining. But he never tries to spell it out in detail, and it would be very hard to do so without falling into absurdity. In the first place, if mixing or joining my labor to your wine makes it my wine, without further ado, then we have a perfectjustificationfor theft. A house painter cannot claim title to a house merely because he has worked on its walls. A poem written on someone's parchmentbelongs to the owner of the parchment,in classicaltheory, not to the poet.'5 Locke would have to assume that mixing labor with something, like mixing honey with wine, creates a new entity to which only the laborer is entitled. That is hardly plausible. If I make a statue with your clay, your ownership has not vanished, because the originalmaterialis still there;I have only alteredits shape. And in many of Locke's illustrations, there is no question of creating something or altering something. For example:
12. Idem[Pomponius] id existimasse scribit,si ex mellemeo,vino tuofactum sit mulsum,quosdam communicari: sed ut et eius esse suam verius, quoque puto ipsesignificat, potius quifecit, quoniam non continet. speciem pristinam 13. Cum quis ex alienamateria suo nomine speciem aliquam fecerit,Nervaet Proculusputanthunc dominumesse qui fecerit, quia quodfactum est, antea nulliusfuerat. Sabinuset Cassiusmagis naturalem rationem dominus putant, ut qui materiae efficere fuerit, idem eius quoque,quodex eadem materia dominus sine materia nulla sit, esset, factum quia speciesefficipossit.... est tamen mediasententiarecteexistimantium, si speciesad materiam revertipossit, verius esse, quodet Sabinus et Cassius si nonpossitreverti, Nervae et Proculo senserunt, veriusesse,quod placuit. 14. D.6,1,23,5:dicit [Cassius]enim, si statuaesuaeferruminatione iunctumbracchium sit, unitate maiorispartis consumiet quodsemel alienum sit, rediread factum sit, etiamsiinde abruptum dominum non posse.non idemin eo quodadplumbatum sit, quia priorem ferruminatio per eandem non idem materiamfacit confusionem, plumbatura efficit. 15. D.6,1,23,3: Sedet id, quodin charta meascribitur aut in tabula statimmeum pingitur, fit: ... necesse est ei reicedi,quodsine illaessenonpotest.

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He that is nourished by the Acorns he pickt up under an Oak, or the Apples he gathered from the Treesin the Wood, has certainlyappropriatedthem to himself .... And 'tis plain, if the first gatheringmade them not his, nothing else could. (2.28) If these acorns and apples are not created or significantly altered by the mere fact of being picked up or picked off, then the most that could be said to rescue the theory for Locke's purposes would be that the labor of picking them has added something to them which creates a new entity. And that is what Lockealmost says: That Labour put a distinctionbetween them and common. That added somethem to more than Nature, the common Mother of all, had done; and thing so they became his private right. (2.28) But he does not actually say that this addition of labor creates a new entity. And so the logical force of the addition remains unclear. A few sentences later, however, Locke offers a sort of explanation: that was mine, removing them out of that common state they That Labour in them. (2.28) were in, hathfixedmy Property Now the addition or mixing of labor is explained as a change of state in the object,for example, a change in its location. This is the closest Locke ever comes to an explanation for his claim that mixing labor with things transformsthem into private property. It is of course a more realistic account of what actually happens in the gathering of acorns and apples. But it also implicitly abandons the classical theory of natural possession. It is still not quite there, because I may cause a change of state in an object without intending to make use of it or claim it as property. A further problem for Locke is to explain why mixing my labor with common property makes it mine, while mixing my labor with someone else's private property does not. This was a major sticking point in the writings of Sir Robert Filmer, the royalist who is Locke's main antagonist and the target of the first book of the Two attributesto Grotius the doctrine, which he considTreatises. Filmer, in his Patriarcha, ers repugnant to Holy Scripture,that God immediately after the Creation,did bestow upon mankind in general a right over things of inferior nature... From whence it came to pass that presently every man might snatch what he would for his own use, and spend what he could. (63) Elsewhere, in a pamphlet about Grotius,he explains his objectionto this theory: Certainly it was as rare felicity, that all the men in the world at one instant of time should agree together in one mind to change the naturalcommunity of all things into private dominion:for without such a unanimous consent it was not possible for community to be altered: for if but one man in the world had dissented, the alterationhad been unjust, because that man by the law of nature had a right to the common use of all things in the world;

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so that to have given a proprietyof any one thing to any other, had been to have robbedhim of his right to the common use of all things. (273) Hence Filmer rejects the notion of a natural community of all things and takes the position that God conferred private property on certain individuals, namely Adam and the succeeding Patriarchs.And from this he derives the divine right of kings. Filmer's argument assumes one kind of common property;Locke's assumes another. Filmer'shypothetical naturalcommunity is a type of partnershipthat could exist only by special convention, in which every decision about the use of the property would have to be by unanimous consent. Locke's natural community is like joint ownership at common law, or even ownership "by the entirety,"where each participanthas the right to use any or all of the joint propertywithout needing the consent of the others.16 A simple example is the modem joint bank account. The co-owners do not require each other'spermission to write checks on it. The remainingquestion is, which of these differentmodels of the state of nature is better supported by argument?By instinct, we are most likely to reject the views of Filmer and side with Locke. But the fact is that both Filmer and Locke fall back on theological and scripturalexegesis at this crucial point. Are there any better reasons, I will end by suggestfrom the standpoint of modemrn philosophy and jurisprudence? to are reasons Locke's once we have restatedit in a that there prefer good position, ing eliminates the uncertainties the that introduced by religious language. way When Locke says that we are all the work-productof God's labor, we can translate that to mean that our existence in the world is a matter of brute fact for which neither we ourselves nor anyone else can claim full credit. True our parents had something to do with it, because their reproductiveactivity was a necessary condition for our appearance;but it was not a sufficient condition. There is a state of nature for us, no matter how civilized we are, because there are many aspects of our life and behavior that are independent of cultural traditions and political controls. Like all animals, we are governed to a great extent by powerful instincts that tend to promote our survival. A famous line from Ulpian in the first title of the Digest identifies these instincts with the law of nature (ius naturale).'7 What we have to do in order to survive, like breathing, drinking, and eating, we do by right. Locke implies (2.6) that we have an obligation to do these things,but it is not necessary to go that far for his purposes. If we have a natural right to act for our survival, we must also have a right to obtain and use those materialsneeded for survival. The act of obtainingthem is the act of taking possession in the classicalsense. A right to take possession is an entitlement. And since this act of possession is for materials to which we and everyone else are already jointly entitled, it bars other individuals from taking possession of the same
things. Otherwise, they could bring about our demise. Locke is very clear on this point. In short, we can justify Locke's idea of the joint ownership of the Earth in the

to Yolton,"Locke was in factrejecting two features 16. According doctrine: of the traditional thatthe original of is for was an and that consent community things ownership requisite of property" the acquisition But Yolton no reason for his that assertion (pp. 188-89). gives the original Locke didnot regard as anownership. community
17. D.1,1,1,3:Ius naturale docuit: namius istud non humani est, quodnaturaomniaanimalia generis sed omnium aviumquoque commune animalium, quaein terra,quaein marinascuntur, proprium, est.

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state of nature simply by way of every person's naturalinstinct and right to survive.18 This joint ownership is by the entirety and not a system of predetermined limited shares,because in the absence of political organizationthere is no way to set up such a system. What is most surprisingabout Locke'sapproachto these questions, for a modem reader, is how devious and complex it is, when the classical solution seems so simple. But Locke was constantly afraid of revealing himself as an advocate of unorthodox political opinions. Moreover,he would have been in a strangely ironic position if he had made explicit use of Romanlegal theory, long associated in the English mind with despotism, as the basis of a new political theory of limited parliamentarygovernment. Yet, that is implicitlyjust what he does. Bibliography DigestalustinianiAugusti,ed. P. Bonfanteet al., Milan:SocietaEditriceLibraria,1960. ed. Peter Laslett,Oxford:Blackwell,1949. Filmer,Sir Robert,Patriarcha, 2nd ed., Oxford: Clarendon P. and Laslett, The Library Harrison, John of JohnLocke, Press, 1971. ed. Peter Laslett, Cambridge: Cambridge Locke, John, Two Treatises of Government, 1963. Press, University Law,5th ed., Boston: Little, Plucknet, Theodore F.T.,A Concise Historyof the Common Brown & Co., 1956. Paris:PressesUniversitairesde France, morale deJohn Locke, Polin, Raymond,Lapolitique 1960. ThePerennial Individualism: Simonds, RogerT., Rational ofLegalInterpretation, Philosophy 1995. Editions Amsterdam: Rodopi, and his Adversaries, on Property: JohnLocke Cambridge:CamTully, James,A Discourse bridge University Press, 1980. and the Compass Yolton, John, Locke Cambridge:Cambridge of Human Understanding, University Press, 1970.

is in and philosophy forjurisprudence of this pointand its importance 18. A briefdiscussion 215-17. Simonds,

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