Suum cuique tribuere - Locke’s concept of property within the state of nature

III. Locke’s state of nature

3.5 Locke’s concept of property within the state of nature

3.5.2 Suum cuique tribuere

Locke explains that the power and liberty one has over person, actions, and labour is the basis of property rights. All have the right to protect and defend this right from the interference of others. It is the “great foundation of property” (Locke II, 44): “[M]an, by being master of himself, and proprietor of his own person, and the actions or labour of it, had still in himself the great foundation of property” (Locke II, 44, 239, emphasis added). Man as the owner of himself is the “proprietor” of his person, actions, and labour and has the “great foundation of property.” The “state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man”

(Locke II, 4, emphasis added). All have a natural right and power over own person and actions to do as they think fit within the limits of natural law.⁶⁶³ This ownership of actions and liberties justifies property rights. Locke explains that every man has “a Property in his own Person” (Locke II, 27); “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself”

(Locke II, 27, emphasis added).

659 See Grotius, (1625), War and Peace, Bk. II, Ch. 17, Sec. 2, Para. 1: vita, membra, libertas were propria cuique.

660 Grotius, (1625), War and Peace, Bk. II, Ch. 3, Sec. 2, emphasis added.

661 Grotius, (1625), War and Peace, Bk. I, Ch. 2, Sec. 1, Para. 5: vita, membra, libertas were propria cuique; Bk.

II, Ch. 17, Sec. 2, Para. 1.

662 Pufendorf , (1749), The law of nature and of nations, Bk. VII, Ch. 8, Para. 719, note 2.

663 See p. 210.

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No other besides the individual has rights to his person. Man is “absolute Lord of his own Person and Possessions” (Locke II, 123). Locke’s predecessors concurred. For Grotius (1625), it is a primary law of nature for every person to have his/her own or that which belongs to him: the suum cuique tribuere. Grotius’s Suum (meum, nostrum) is that which

“belongs” to a person in the state of nature that he or she is entitled to protect against aggressors.⁶⁶⁴ Grotius states, “God has given life to man, not to destroy, but to preserve it;

assigning to him for this purpose a right to the free enjoyment of personal liberty, reputation, and the control over his own actions”(emphasis added).⁶⁶⁵ Everyone has a duty to preserve the life given with all that is necessary for that purpose, such as control over actions and liberties. Grotius calls liberty (libertas) the power over one’s actions (potéstas in se). This state of liberty, within each sphere, implies equality among men. Everyone has the right to be free within his own sphere.

“Civilians call a faculty that Right, which every man has to his own; but we shall hereafter, taking it in its strict and proper sense, call it a right. This right comprehends the power, that we have over ourselves, which is called liberty, and the power, that we have over others, as that of a father over his children, and of a master over his slaves.

It likewise comprehends property, which is either complete or imperfect; of the latter kind is the use or possession of any thing without the property.” (emphasis added)⁶⁶⁶ For Grotius, everyone has the right to be free within his own sphere. For this state to be preserved and become a collective one, one cannot interfere with the sphere of others. Grotius also states,

“[F]irst, it shall be permissible to defend [one’s own] life and to shun that which threatens to prove injurious; secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life. The latter precept, indeed, we shall interpret with Cicero as an admission that each individual may, without violating the precepts of nature, prefer to see acquired for himself rather than for another, that which is important for the conduct of life.” (emphasis added)⁶⁶⁷

It is argued that Grotius uses natural and common ideas of observation in children. A child picking a fruit will consider the fruit to be his own. When another child takes it from him, the child will feel the physical loss of the fruit as well as the attack on the person. Adults feel this when an object that “belonged” to them is taken from them.⁶⁶⁸ Pufendorf also obliges man to defend this property: “People have as natural and as unquestionable a Right to defend… their Lives, their Estates, and Liberties against the Attempts of a Tyrant.”⁶⁶⁹ For Pufendorf, the right to property in the wide sense is of first importance, including life and liberties, similar to Locke (see Locke II, 123).

The basic idea is that a man’s labour and actions belong to him. Due to this ownership relationship, a man could appropriate as part of his/her “own” other exterior objects just by importing something of himself as his own actions or labour into the object while changing it

664 Alicui proprium esse (“to be proper” to somebody).

665 See Grotius, (1625), War and Peace, Bk. II, Ch. 17, Sec. 2, Para. 1: vita, membra, libertas were propria cuique.

666 Grotius, (1625), War and Peace, Bk. I, Ch. 1, Sec. 5, emphasis added. “[E]very man is the governor and arbiter of affairs relative to his own property” (Grotius, (1868 ed.), De iure, Bk. I, Ch. 18).

667 Grotius, (1868 ed.), De iure, Bk. II, Ch. 10–11.

668 See Olivecrona, (1974), Appropriation in the State of Nature, 215.

669 Pufendorf , (1749), The law of nature and of nations, Bk. VII, Ch. 8, Para. 719, note 2.

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from its original state: “[H]e that so employed his pains about any of the spontaneous products of nature, as any way to alter them from the state which nature put them in, by placing any of his labour on them, did thereby acquire a propriety in them” (Locke II, 37, emphasis added).⁶⁷⁰

For Locke, exterior objects can be “owned” due to adding value through labour, adding something of him or herself while altering it from its state within nature. Because every man owns his or her own actions and labour, in altering an object from its state of nature, a person annexes or adds something he or she “owns” to the object. This can be considered a service of added value by the labourer, who deserves some benefit from his service.⁶⁷¹

Pound (1914) confirms that “the social system has defined certain things as belonging to each individual. Justice consists in rendering him these things and in not interfering with his having and using them within the defined limits.”⁶⁷²

The protection of our ownership is also recognized in a well-known formula of the Institutes:

“The precepts of right and law are three; “to live honestly, not to injure another, and to give to each one that which belongs to him.”⁶⁷³ The protection of property in its wider definition is recognized to be the very aim of law and societies. Grotius agrees: “For the end of society is to form a common and united aid to preserve to everyone his own.”⁶⁷⁴ For Pufendorf the right of property is beyond question.⁶⁷⁵ It is thus the same protection of property in the wide sense that is for Locke the very basis of society formation: “The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property.” (Locke II, 124 and Locke II, 7, emphasis added).

3.5.2.1 No harm to others

No harm to others is a basic natural law negative inference deriving from the fundamental principle of the suum cuique tribuere.⁶⁷⁶ The negative inference of the suum is to respect others’ property in the wide sense. The protection of the “own” in the wider sense also obliges one not to interfere with others’ property. Under the law of nature, no injury to others as to their person, liberties, or possessions is allowed. This is the principle of neminem laedere. No one may harm others in any way that can damage the ability of preservation and self-government (liberty, health, or materials needed for this): “being all equal and independent,

670 “The Fruit, or Venison, which nourishes the wild Indian, who knows no Inclosure, and is still a Tenant in common, must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his Life” (Locke II, 26, emphasis added).

671 See explanation of labour on p. 142.

672 Pound, (1914), 608.

673 Emphasis added. Justinian, (533 AD), Bk. 1, Title 1, Sec. 3. Savigny explains, “The first precept, to live honorably, that is, to preserve moral worth in one’s own person, so far as external acts go, is represented in the legal system by the doctrines as to good faith in transactions, the rules as to illegality of corrupt bargains . . . . The second precept, not to injure another, the respecting of another’s personality as such, is represented by those rules and doctrines that give practical effect to the interest of personality. The third precept, to render to every one his own, that is, to respect the acquired rights of other men, is represented in the rules and doctrines which secure the interest of substance” (emphasis added) (Savigny, System des heutigen römischen, Rechts, I, 407-410), cited in Pound, (1914), 609).

674 Grotius, (1625), War and Peace, Bk. I, Ch. 2, Sec. 1, Para. 5. Here, Grotius says the aim of society is the preservation of each member.

675 Pufendorf, (1672), De iure Naturae, Vol. IV, entire Lib. 4. Cited in Pound, (1914), 619.

676 See p. 121.

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no one ought to harm another in his life, health, liberty, or possessions” (Locke II, 6, emphasis added). Further within the same paragraph Locke states that men “may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another” (Locke II, 6, emphasis added). Men thus cannot interfere with others’ rights if it might harm their preservation in any way: “And that all men may be restrained from invading others rights, and from doing hurt to one another” (Locke II, 7). Locke explains that nobody could “ingross” anything “to the prejudice of others” (Locke II, 31) and insists that it is important not to transgress and injure the suum cuique of others (neminem laedere). For Locke, man can neither invade others’ rights nor cause them harm.

Locke considers it an injury to attack another’s property (life, liberty, or possessions). The offender loses natural law protection and puts himself into a state of war; he “declares himself to live by another rule than that of reason” (Locke II, 8).⁶⁷⁷ I use Forde (2006) as support. He interprets Locke as such that the consultation of reason demonstrates that all have equal rights, so no one can advance his own interests at the expense of others: “Though I may prefer my preservation when it is threatened, equity at other times forbids me from pursuing my own good at the expense of others. What I learn when I consult reason is that others have as much right as I, which I am bound to respect.”⁶⁷⁸

For other natural law authors, including Locke’s predecessors, the preservation of this basic principle creates a negative inference to avoid interfering with the spheres of others (alieni abstinentia).⁶⁷⁹ As for Locke, this state of liberty implies equality among men and the respect for the same rights of others. Grotius states that “to deprive another of what belongs to him, merely for one's own advantage, is repugnant to the law of nature,…. men should forbear from mutual injuries, as they were born for society, which cannot subsist unless all the parts of it are defended by mutual forbearance and good will” (emphasis added).⁶⁸⁰ For Grotius, depriving another of his own violates reason and is repugnant to the law of nature. Men are to avoid harming each other. According to Grotius,

“Cicero, in the third book of his offices, asks this question, if a wise man, in danger of perishing with hunger, has not a right to take the provisions of another, who is good for nothing? To which he replies; By no means. For no one's life can be of such importance as to authorize the violation of that general rule of forbearance, by which the peace and safety of every individual are secured.” (emphasis added)⁶⁸¹

Wisdom asks that man avoid the transgression of harming one another. Grotius further recognizes from Cicero that no one’s life can be of such importance as to authorize the violation of this general rule of forbearance, which allows the safe and peaceful preservation of every individual.

Grotius corroborates this with various legal authors and demonstrates that harming others must be avoided even when inconvenient; it is the animals that benefit at the expense of others out of an instinct for self-preservation. But men know the consequences of good and

677 See p. 59.

678 Forde, (2006), 246, 250, emphasis added.

679 Grotius, (1625), War and Peace, Prol. 44: “iustitia tota in alieni abstinentia posita est.” See also; Bk. I, Ch. 2, Sec. 1, Para. 5; Bk. II, Ch. 17, Sec. 2, Para. 1. Grotius and Pufendorf discuss the Suum cuique tribuere above.

680 Grotius, (1625), War and Peace, Bk. I, Ch. 1, Sec. 3 (emphasis added). “Once it was introduced,” confirms Grotius, “the law of nature tells me that it is wrong for me seize what is yours against your will.” Grotius, (1625), War and Peace, Bk. I, Ch. 1, Sec. 21.

681 Grotius, (1625), War and Peace, Bk. II, Ch. 2, Sec. 8.

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evil deeds. As such, they must also know the consequences of harming others:

“Cicero, in his first book of offices, says, we do not talk of the justice of horses or lions. In conformity to which, Plutarch, in the life of Cato the elder, observes, that we are formed by nature to use law and justice towards men only. In addition to the above, Lactantius may be cited, who, in his fifth book, says that in all animals devoid of reason we see a natural bias of self-love for they hurt others to benefit themselves;

because they do not know the evil of doing willful hurt. But it is not so with man, who, possessing the knowledge of good and evil, refrains, even with inconvenience to himself, from doing hurt. … it is evident they cannot transgress the bounds of that difference like other animals, without exciting universal abhorrence of their conduct.”

(emphasis added)⁶⁸²

Grotius even defines justice as avoiding taking that which belongs to others.⁶⁸³ Interference with life, liberty, actions, or possessions opposes justice. This link between injustice and invading the rights of others is also found in Locke: “Where there is no property there is no injustice.”⁶⁸⁴ Simmons (1992) confirms and demonstrates that Locke defines injustice as

“taking from others, without their consent, what their honest industry has possessed them of.”⁶⁸⁵ Pufendorf also states that people have a natural right to their “own” life and liberties

“against the Attempts of a Tyrant” (emphasis added).⁶⁸⁶ A similar idea connects justice to the suum cuique tribuere in the classical formula in the Institutes of Justinian: “Justice is the set and constant purpose which gives to every one his own.”⁶⁸⁷

Locke and other natural law authors see the protection of property in the wider sense to be of importance (Locke II, 124, 7). The principle of the suum cuique tribuere deriving from our ownership of ourselves indicates the duty to respect the same right in others and to avoid injuring others’ life, person, liberty, actions, or possessions.⁶⁸⁸

3.5.2.2 Macpherson’s society divided by class

To Macpherson, if each individual is the proprietor of his own capacities and labour, as Locke argues, then those who sell their labour will become dependent upon those with property. As a result, he explains, they lose their rights and liberties. He uses passages from Locke’s economic writing wherein Locke described labourers as living from hand to mouth.⁶⁸⁹ From that, he concludes that those who have no property cannot be fully rational and that owning property reflects unequal abilities and inequalities in rationality⁶⁹⁰: “To put it another way, the man without property in things loses that full proprietorship of his own person which was the

682 Grotius, (1625), War and Peace, Bk. I, Ch. 1, Sec. 21, emphasis added.

683 See Grotius, (1625), War and Peace, Bk. II, Ch. 2, Sec. 2; Bk. I, Ch. 2, Sec. 1, Para. 5.

684 “[I]s a proposition as certain as any demonstration in Euclid: for the idea of property being a right to anything, and the idea to which the name “injustice” is given being the invasion or violation of that right, it is evident that these ideas, being thus established, and these names annexed to them, I can certainly know this position to be true, as that a triangle has three angles equal to two right ones.” (Locke (1693), Education, Para.

18, emphasis added).

685 Simmons, (1992), 319.

686 Pufendorf, (1749), The law of nature and of nations, Bk. VII, Ch. 8, Para. 719, note 2.

687 Justinian, (533 AD), Bk. 1, Title 1, Sec. 10, emphasis added.

688 See further references on Locke’s predecessors on equality on p. 79.

689 Macpherson, (1962), 222.

690 Macpherson, (1962), 446-447.

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To further support his arguments, Macpherson cites Locke: “Thus the grass my horse has bit;

the turfs my servant has cut; and the ore I have digged in any place where I have a right to them in common with others, become my property” (Locke II, 28).⁶⁹² From this paragraph he concludes that for Locke, the wage labour relationship was natural even in the state of nature.

This supposed connection combined with Locke’s lack of explanation as to why a free man would sell his labour to someone else leads Macpherson to conclude that “the continual alienation of labour for a bare subsistence wage, which he [Locke] asserts to be the necessary condition of wage-laborers throughout their lives, is in effect an alienation of life and liberty.”⁶⁹³

Vaughn (1980) replies and says that Locke was only describing a typical contractual relationship whereby one sells his labour for the guarantee of a wage. For support, Vaughn (1980) notes that

“a Free-man makes himself a servant to another, by selling him for a certain time, the service he undertakes to do, in exchange for wages he is to receive: and though this commonly puts him into the family of his Master, and under the ordinary discipline thereof; yet it gives the master but a temporary power over him, and no greater, than what is contained in the contract between.”⁶⁹⁴

I oppose Macpherson’s explanation as it is vague and ignores the context of a contractual relationship such that a conclusion on a divided society is without merit. I agree with Tully, who adds that the right to life, liberty, and means of support cannot be alienated without consent. He emphasises that unlike a slave, the servant or wage earner does not lose control over his life or liberty, but rather merely agrees to a contractual relationship under which he or she sells his or her service in return for a conventional right.⁶⁹⁵ He supports this argument with the following Locke passage: “A Man can no more justly make use of another’s necessity to force him to become his Vassal, by with-holding that Relief, God requires him to afford to the wants of his Brother, than he that has more strength can seize upon a weaker, master him to his obedience, and with a Dagger at his Throat offer him Death or Slavery.”⁶⁹⁶ This implies that wage relationships based on necessity are forbidden and the owner of property has to offer charity as a right and not as a duty to help the needy under a labour

Dans le document The origins of property rights: a comparison on the basis of John Locke's concept of property and his natural law limits based on reason. (Page 130-136)