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Explainer: Property Rights

by The Ethics Centre
05 July 2017
When we learn about right and wrong, there are some behaviours we quickly start to associate with wrong – lying, hurting people, stealing and so on. But the next stage in our ethical development requires us to understand the concepts underneath these activities. For lying, that’s the concept of truth, for hurting others, the ideas of dignity and rights, and for theft, the idea of property.

We tend to take property for granted. People own things, share things or have access to things that don’t belong to them. We rarely stop to think how we come to own things, whether there are some things we shouldn’t be allowed to own or whether our ideas of property and ownership are adequate for everybody.

A number of different thinkers have taken an interest in property. The most influential work was done by English philosopher John Locke. His ideas have come to be known as the labour theory of property because he believed we came to own something through work. Through labour, Locke thought we ‘fused’ a part of ourselves with the object we were working on, making it ours.

Importantly, this means we cannot claim to own something we haven’t worked on. But to fully understand what this means, we have to understand a concept called the Commons.

In England, the Commons were lots of land which nobody owned and everyone in a village was allowed to use – usually, to let their cattle graze. However, the Commons quickly encountered a problem. Because nobody owned the commons, people tended to be selfish and overuse it. They’d graze their cattle on it for too long or wouldn’t wait long enough for the grounds to regrow. Eventually, the Commons became unusable because they hadn’t been cared for.

This is a problem economists call the tragedy of the Commons. When a resource is shared, people often approach it from a self-interested perspective. They want to get as much as they can out of it before everybody else uses it and the resource runs out.

Ever been at a group lunch where everybody brings and shares a plate of food? If you were last to serve yourself, chances are the best dishes were gone by the time you got to them. That’s the tragedy of the Commons – everyone takes care of themselves and not everyone gets to use something they had a right to access. 

Locke’s work emerges from the idea that at the beginning of human history everything was part of the Commons. He wrote that “in the beginning, all the world was America”, which at the time was a new and seemingly unclaimed land.

But things don’t remain in common forever. Locke thought it was natural for humans to acquire property. He wanted to know how people could transform an object from a piece of common property to their own private property. He came up with three conditions:
  1. First, you must limit what you take from the Commons so everyone else can enjoy using the resource. Just because you got to the dish first doesn’t mean you can load your plate with as much as you want.
  2. Second, you can’t take more than you would be able to use. Again, don’t load up your plate if you aren’t going to be able to finish it. Even if you only take your fair share, you’d be wasting some if you weren’t planning to eat it all.
  3. And third, you can only own something if you’ve worked on it. The most basic property we have is our body. When we do work with our bodies – Locke calls it ‘the work of our hands’ – we own what we produce, as an extension of the ownership we have over our bodies.
The most controversial point from Locke comes from the idea we only own something if we leave “enough and as good” for everyone else. He used the idea of farming – remember, Locke is writing in an agricultural age. You can put a fence around some land, plough it and use it to grow food so long as there’s enough land for everyone else to live off and you can use the products of the land. You might not eat all the food. You might sell it, trade it or give it to others. But it can’t go to waste.

This means even if a farmer puts a fence around their orchard they have no right to claim ownership over any of the fruit that will be left to fall and rot. Any person passing by has the right to take the surplus as their own.

Locke’s account of private property ownership has been influential and remains relevant today, though some wonder if it is complex enough for the modern world. For example, extremely wealthy companies and people occupy large tracts of land and food whilst other people are homeless and starving. Does this satisfy Locke’s criteria of leaving “enough and as good?”.

Perhaps not, but that might not be a problem with Locke’s theory. He is describing the way property rights work in a state of nature before there is a government, human made laws or an established economic system. So perhaps Locke would say the existence of wealthy conglomerates, people and nations show that there’s something wrong with our laws about property – they’ve gone beyond what our natural property rights allow.

A more recent challenge to Locke’s theory is how it would work with digital assets or intellectual property. Is online piracy theft or is it more like taking an apple left to rot? 

Another criticism of his idea is it effectively denies that groups like Native Americans or Aboriginal Australians owned the land they lived on, because they didn’t cultivate it in the way Locke required. When Locke writes that “in the beginning, the whole world was America”, he reveals his belief that America was unowned at the time of British settlement.

Yet we know America was occupied and the lands British settlers fenced and farmed were owned by various Native American tribes. The same is true in Australia and other places where colonial settlement displaced an original population’s ways of life. So although Locke’s work serves as a useful explanation of Western conceptions of property ownership, we should wonder if it is as ‘natural’ as he thought it was.

On the other hand, it’s likely Locke simply had no idea of the way in which Indigenous people have managed the landscape over millennia. Had he understood this, then perhaps he would have recognised the way Indigenous groups use and relate to land as a perfect example of his thinking about property ownership.

Locke’s work finds another critic in the form of socialism and communism, whose adherents prioritise common or collective property over private forms of property. Ancient Greek philosopher Plato thought collective property was a more appropriate way to unite people behind shared goals. He thought it was better for everyone to celebrate or grieve together than have some people happy and others sad at the way events differently affect their privately owned resources. Karl Marx also thought humanity should – and does – move toward co-operative work and shared ownership of resources.

However, Locke and Marx might be able to find some common ground. One of the central themes of Marx’s work was alienation – when people’s work becomes meaningless because they can’t afford to buy the things they’re working to make. They can never see or enjoy the fruits of their labour let alone own them. Given the importance Locke places working with our hands to create things, there might be some common ground to be found between his followers and Marxists, groups who are usually seen as rivals. 

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