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  • Today, we turn to John Locke.

  • On the face of it, Locke is a powerful ally of the libertarian.

  • First, he believes, as libertarians today maintain,

  • that there are certain fundamental individual rights that are so important

  • that no government, even a representative government,

  • even a democratically elected government, can override them.

  • Not only that, he believes that those fundamental rights include

  • a natural right to life, liberty, and property,

  • and furthermore he argues that the right to property

  • is not just the creation of government or of law.

  • The right to property is a natural right in the sense

  • that it is prepolitical.

  • It is a right that attaches to individuals as human beings,

  • even before government comes on the scene,

  • even before parliaments and legislatures

  • enact laws to define rights and to enforce them.

  • Locke says in order to think about what it means to have a natural right,

  • we have to imagine the way things are

  • before government, before law, and that's what Locke means

  • by the state of nature.

  • He says the state of nature is a state of liberty.

  • Human beings are free and equal beings.

  • There is no natural hierarchy.

  • It's not the case that some people are born to be kings

  • and others are born to be serfs.

  • We are free and equal in the state of nature and yet,

  • he makes the point that there is a difference between

  • a state of liberty and a state of license.

  • And the reason is that even in the state of nature,

  • there is a kind of law.

  • It's not the kind of law that legislatures enact.

  • It's a law of nature. And this law of nature constrains

  • what we can do even though we are free,

  • even though we are in the state of nature.

  • Well what are the constraints?

  • The only constraint given by the law of nature

  • is that the rights we have, the natural rights we have

  • we can't give up nor can we take them

  • from somebody else.

  • Under the law of nature, I'm not free to take somebody else's

  • life or liberty or property, nor am I free to take

  • my own life or liberty or property.

  • Even though I am free, I'm not free to violate the law of nature.

  • I'm not free to take my own life or to sell my self into slavery

  • or to give to somebody else arbitrary absolute power over me.

  • So where does this constraint, you may think it's a fairly

  • minimal constraint, but where does it come from?

  • Well, Locke tells us where it comes from

  • and he gives two answers. Here is the first answer.

  • "For men, being all the workmanship of one omnipotent,

  • and infinitely wise maker," namely God,

  • "they are His property, whose workmanship they are,

  • made to last during His, not one another's, pleasure."

  • So one answer to the question is why can't I give up

  • my natural rights to life, liberty, and property is well,

  • they're not, strictly speaking, yours.

  • After all, you are the creature of God. God has a bigger property right in us,

  • a prior property right.

  • Now, you might say that's an unsatisfying,

  • unconvincing answer, at least for those

  • who don't believe in God.

  • What did Locke have to say to them? Well, here is where Locke appeals

  • to the idea of reason and this is the idea,

  • that if we properly reflect on what it means to be free,

  • we will be led to the conclusion that freedom can't just be a matter

  • of doing whatever we want.

  • I think this is what Locke means when he says, "The state of nature

  • has a law of nature to govern it which obliges everyone: and reason,

  • which is that law, teaches mankind who will but consult it

  • that all being equal and independent, no one ought to harm another

  • in his life, health, liberty, or possessions."

  • This leads to a puzzling paradoxical feature of Locke's

  • account of rights.

  • It's the idea that our natural rights are unalienable.

  • What does "unalienable" mean? It's not for us to alienate them

  • or to give them up, to give them away, to trade them away, to sell them.

  • Consider an airline ticket. Airline tickets are nontransferable.

  • Or tickets to the Patriots or to the Red Sox.

  • Nontransferable tickets are unalienable.

  • I own them in the limited sense that I can use them for myself,

  • but I can't trade them away. So in one sense, an unalienable right,

  • a nontransferable right makes something I own less fully mine.

  • But in another sense of unalienable rights,

  • especially where we're thinking about life, liberty, and property,

  • or a right to be unalienable makes it more deeply,

  • more profoundly mine, and that's Locke's sense

  • of unalienable.

  • We see it in the American Declaration of Independence.

  • Thomas Jefferson drew on this idea of Locke.

  • Unalienable rights to life, liberty, and as Jefferson amended Locke,

  • to the pursuit of happiness. Unalienable rights.

  • Rights that are so essentially mine

  • that even I can't trade them away or give them up.

  • So these are the rights we have in the state of nature

  • before there is any government.

  • In the case of life and liberty, I can't take my own life.

  • I can't sell myself into slavery any more than I can take

  • somebody else's life or take someone else

  • as a slave by force.

  • But how does that work in the case of property?

  • Because it's essential to Locke's case that private property can arise

  • even before there is any government.

  • How can there be a right to private property

  • even before there is any government?

  • Locke's famous answer comes in Section 27.

  • "Every man has a property in his own person.

  • This nobody has any right to but himself."

  • "The labor of his body and the work of his hands,

  • we may say, are properly his."

  • So he moves, as the libertarians later would move,

  • from the idea that we own ourselves, that we have property in our persons

  • to the closely connected idea that we own our own labor.

  • And from that to the further claim that whatever we mix our labor with

  • that is un-owned becomes our property.

  • "Whatever he removes out of the state that nature has provided,

  • and left it in, he has mixed his labor with,

  • and joined it to something that is his own, and thereby

  • makes it his property."

  • Why? Because the labor is the unquestionable property

  • of the laborer and therefore, no one but the laborer

  • can have a right to what is joined to or mixed with his labor.

  • And then he adds this important provision,

  • "at least where there is enough, and as good left in common for others."

  • But we not only acquire our property in the fruits of the earth,

  • in the deer that we hunt, in the fish that we catch

  • but also if we till and plow and enclose the land and grow potatoes,

  • we own not only the potatoes but the land, the earth.

  • "As much land as a man tills, plants, improves, cultivates

  • and can use the product of, so much is his property.

  • He by his labor encloses it from the commons.

  • So the idea that rights are unalienable seems to distance

  • Locke from the libertarian.

  • Libertarian wants to say we have an absolute property right

  • in ourselves and therefore, we can do with ourselves

  • whatever we want.

  • Locke is not a sturdy ally for that view.

  • In fact, he says if you take natural rights seriously,

  • you'll be led to the idea that there are certain constraints

  • on what we can do with our natural rights,

  • constraints given either by God or by reason reflecting

  • on what it means really to be free, and really to be free

  • means recognizing that our rights are unalienable.

  • So here is the difference between Locke and the libertarians.

  • But when it comes to Locke's account of private property,

  • he begins to look again like a pretty good ally

  • because his argument for private property begins

  • with the idea that we are the proprietors of our own person

  • and therefore, of our labor, and therefore,

  • of the fruits of our labor, including not only

  • the things we gather and hunt in the state of nature

  • but also we acquire our property right in the land that we enclose

  • and cultivate and improve.

  • There are some examples that can bring out the moral intuition

  • that our labor can take something that is unowned and make it ours,

  • though sometimes, there are disputes about this.

  • There is a debate among rich countries and developing countries

  • about trade-related intellectual property rights.

  • It came to a head recently over drug patent laws.

  • Western countries, and especially the United States say,

  • "We have a big pharmaceutical industry

  • that develops new drugs.

  • We want all countries in the world to agree

  • to respect the patents."

  • Then, there came along the AIDS crisis in South Africa,

  • and the American AIDS drugs were hugely expensive,

  • far more than could be afforded by most Africans.

  • So the South African government said,

  • "We are going to begin to buy a generic version of the AIDS

  • antiretroviral drug at a tiny fraction of the cost

  • because we can find an Indian manufacturing company

  • that figures out how the thing is made and produces it,

  • and for a tiny fraction of the cost, we can save lives

  • if we don't respect that patent."

  • And then the American government said,

  • "No, here is a company that invested research

  • and created this drug.

  • You can't just start mass producing these drugs without paying

  • a licensing fee."

  • And so there was a dispute and the pharmaceutical company

  • sued the South African government to try to prevent their buying

  • the cheap generic, as they saw it, pirated version of an AIDS drug.

  • And eventually, the pharmaceutical industry gave in and said,

  • "All right, you can do that."

  • But this dispute about what the rules of property should be,

  • of intellectual property of drug patenting, in a way,

  • is the last frontier of the state of nature because among nations

  • where there is no uniform law of patent rights and property rights,

  • it's up for grabs until, by some act of consent,

  • some international agreement, people enter into some settled rules.

  • What about Locke's account of private property

  • and how it can arise before government and before law

  • comes on the scene? Is it successful?

  • How many think it's pretty persuasive?

  • Raise your hand.

  • How many don't find it persuasive?

  • All right, let's hear from some critics.

  • What is wrong with Locke's account of how private property can arise

  • without consent? Yes?

  • Yes, I think it justifies European cultural norms as far as

  • when you look at how Native Americans may not have cultivated American land,

  • but by their arrival in the Americas, that contributed

  • to the development of America, which wouldn't have otherwise

  • necessarily happened then or by that specific group.

  • So you think that this is a defense, this defense of private property in land...

  • Yes, because it complicates original acquisition

  • if you only cite the arrival of foreigners that cultivated the land.

  • - I see. And what's your name? - Rochelle.

  • - Rochelle? - Yes.

  • Rochelle says this account of how property arises

  • would fit what was going on in North America during the time

  • of the European settlement.

  • Do you think, Rochelle, that it's a way of defending

  • the appropriation of the land?

  • Indeed, because I mean, he is also justifying

  • the glorious revolutions.

  • I don't think it's inconceivable that he is also justifying

  • colonization as well.

  • Well, that's an interesting historical suggestion

  • and I think there is a lot to be said for it.

  • What do you think of the validity of his argument though?

  • Because if you are right that this would justify the taking

  • of land in North America from Native Americans

  • who didn't enclose it, if it's a good argument,

  • then Locke's given us a justification for that.

  • If it's a bad argument, then Locke's given us a mere

  • rationalization that isn't morally defensible.

  • - I'm leaning to the second one... - You're leaning toward the second one.

  • But that's my opinion as well.

  • All right, well, then, let's hear if there is

  • a defender of Locke's account of private property,

  • and it would be interesting if they could address Rochelle's worry

  • that this is just a way of defending the appropriation

  • of land by the American colonists from the Native Americans

  • who didn't enclose it.

  • Is there someone who will defend Locke on that point?

  • Are you going to defend Locke?

  • Like, you're accusing him of justifying the European

  • basically massacre the Native Americans.

  • But who says he is defending it?

  • Maybe the European colonization isn't right.

  • You know, maybe it's the state of war that he talked about

  • in his Second Treatise, you know.

  • So the wars between the Native Americans and the colonists,

  • the settlers, that might have been a state of war that

  • we can only emerge from by an agreement or an act of consent

  • and that's what would have been required fairly to resolve...

  • Yes, and both sides would have had to agree to it and carry it out

  • and everything.

  • - But what about when, what's your name? - Dan.

  • But Dan, what about Rochelle says this argument in Section 27

  • and then in 32 about appropriating land,