One of the most controversial areas of government power in recent years is eminent domain law. In eminent domain cases, a family may find themselves without their home, because their local government decides it is needed for a new building project or oil pipeline. Given what you now know about Locke’s theory of property, is this a legitimate power of the government? Why, or why not? Explain your response.
Is the theory of property advanced by Locke the only possible theory of property? Consider how Locke’s theory relates to Native American conceptions of man’s relationship to the land. Is it possible that Locke’s theory can be misused to justify inappropriate policies?
A complicated area of international law involves intellectual property rights. Some argue that with the advent of the internet, material should be made more widely available and intellectual property should become an outdated concept. Do you agree or disagree, given the theories of property and labor in this unit?
In Locke’s view, it would appear that eminent domain is not a legitimate power of government. There are two important principles of his political theory which lead to this conclusion.
First, Locke argued that government is created by the people to better secure individual rights to life, liberty, and property. He further stated that government does not have the right to infringe on the rights which it was formed to protect. (This prohibition, while important, was not quite absolute in his view, as–contrary to what some would claim–he discussed just taxation as being by consent of the people.)
Second, Locke argued that people tend to be biased toward their own interests, and that one of the reasons people form governments is to have a neutral judge to which to appeal in disputes. As a result, he emphasized the role of impartial law as a foundation of government, and warned against those in authority making “extemporary decrees”–i.e., case-by-case or arbitrary decisions.
Given that eminent domain is, by definition, the taking of property on an as-needed, case-by-case basis, it goes against important principles of Locke’s political theory. A case could, admittedly, be made that if the people consented to the exercise of this power, and if the power were used for the good of the people, then Locke’s theory may allow it. However, the main principles (protection of property rights and impartial law) mentioned above are foundational to his theory, and would seem to outweigh other arguments.
Locke’s theory of property is simple. People possess their own bodies. Therefore, they possess the efforts of their bodies. Therefore, they possess the results of those efforts. The logic is difficult to dispute without starting at the beginning of the chain, i.e. questioning whether we possess ourselves.
It is possible that Locke’s theory could be used to justify, for example, the taking of Native American land by European settlers. The justification would be that the land of North America was essentially public or common land, and that therefore anyone could lay claim to it by working it.
This justification, however, overlooks some specifics of his theory. One such notable detail is that he lays an important qualification on the individual’s ability to claim common land: that there be “enough, and as good” left for others. It seems clear that laying such a claim to land that the subsistence of others is crowded out would not be consistent with Locke’s theory.
Another detail of Locke’s theory is his mention of “common” land that is, by English custom, protected by law and not open to claim. He explains that in this case such “common” land is more accurately considered to be owned jointly by the whole county or parish. The Native Americans’ use of land corresponds more nearly to this type of joint ownership than it does to the private ownership he discusses elsewhere. Since he explains the legitimacy of this arrangement, it seems there is a place within his theory for the Native Americans’ land usage.
On the whole, it must be admitted that Locke’s theory assumes cultivation of land to be a good thing in itself, and does not really come to terms with the possibility of a permanent hunter-gatherer society. However, it seems equally clear that any justification, supposedly drawn from Locke’s theory, for unethical land seizure, is most likely an abuse of his theory. Locke’s theory may be imperfect, but its principles are sound and, if used correctly, prohibit exactly the types of abuses we are discussing.
Locke’s theory of property is simple when discussing concrete objects. For example, if I take wood and make a farming tool, I take what is in nature and I improve it with my labor. The addition of my labor makes the tool I have made, my property.
What are the differences between this example and intellectual property? Intellectual property is ownership of a concept rather than a concrete object. Intellectual property is ownership, not of the tool itself, but of the design I came up with for the tool I made. Intellectual property means, in general, that if someone else likes my unique farming tool which I designed, they may, perhaps, make a similar tool for their own use, but they may not copy my design and then sell the tools to others.
Intellectual property, then, is an attempt to extend Locke’s logic. Locke says that I own my body, and therefore my labor, and therefore the fruits of my labor. Intellectual property rights say that I own my mind, and therefore the work of my mind, and therefore my ideas, and therefore the profit that may result from those ideas.
The internet has made the sharing of information and ideas much easier than in times past. It may be advantageous for many, even for society as a whole, to share ideas without regard to intellectual property. However, this advantage cannot nullify the pre-existing right of individuals to their unique ideas. The free exchange of ideas, without concern for intellectual property rights, should be the choice of the individual, not a societal rule (in fact, free exchange seems to have flourished alongside intellectual property rights without hindrance).
- Eminent domain is a legitimate power of the government. According to Locke, when a man decides to enter society, all of his rights and properties are subject to the law as long as the law is agreed upon by everyone and is not arbitrary. So far as a society and in our government, we have agreed that eminent domain is lawful and anyone can be subjected to it according to reason and systems. The reason for eminent domain is to take private property in order to make that property useful for the public. The government has not taken someone’s property randomly or for unjust reasons; the property is often critical for public roads or for public utility. Although it may feel like it is violating someone’s natural right, when someone consents to the government they consent to the majority rule that this is okay.
- Locke’s theory of property is not the only one. Native Americans did NOT believe enclosing land and that tilling the land does not automatically make it yours. Although for the most part Locke argued that as long as you make use the land, that you do not claim more land that you can possibly use, it is lawful. Another theory of property that Locke does not agree with is money and money can be used to justify inappropriate policies. With money a person can claim a land and they don’t have to till it. Locke sees this as wasteful and not natural. However, using Locke’s theory of labor and owning your labor, the theory of money arises.
- I disagree and agree that intellectual property should become an outdated concept. Locke’s theory of property says that you own your labor, therefore you own your own intellectual property. However, tax can still be imposed on you and this is not seen as slavery or taking away your property or a violation of your rights. I believe that you can still be properly compensated for your labor, however, just like tax, a portion of it should still be allowed to be taken for the greater good. The best example is patents for medicine. The institution that developed it should be fairly compensated, however the patent still must be released to the general public for the betterment of people. However, this is something we all must agree on before it becomes lawful.