Elizabeth Warren made a bit of splash recently by identifying the role infrastructure paid for by all of us played in facilitating commerce. Her point, as related to the topic of this post, is that for you to be able to efficiently contribute your labor to your property, and thus enhance its value, you rely on the benefits received from being a part of society. Hence, it is right that the social contract should require you to fund similar benefits for the next generation. Pretty compelling in my book. I wonder if one can take it a step further and say that the very existence of private property is a convention that springs from the social contract.
John Locke says no. Locke’s essay Concerning Civil Government (“CCG”) largely concerns private property because Locke sees the preservation of private property as the primary function of government. See, e.g., CCG ¶ 88 (the power of the commonwealth to punish is “for the preservation of the property of all members of society”); ¶ 120 (assuming men “enter into society with others for the securing and regulating of property”); ¶ 138 (“the preservation of property being the end of government”); cf ¶ 123 (“all being kings . . . the enjoyment of the property he has in this [natural] state is very unsafe, very insecure”). By contrast, Jean Rousseau writes more generally in The Social Contract (“TSC”) that “all being born free and equal, alienate their liberty only for their own advantage.” TSC Book I, Section 2, para. 3.
Locke recognizes that laws regarding private property are conventions, but if the purpose of civil government is the protection of private property, private property must predate civil government. For this, Locke turns to Natural Law. Locke describes the state of nature as “a state of liberty” but not “a state of license,” because “[t]he state of Nature has a law of Nature to govern it.” CCG ¶ 6. Pursuant to Natural law, for any man, “[t]he ‘labour’ of his body ad the ‘work’ of his hands, we may say are properly his.” ¶ 26. Thus, private property rights spring from one’s labor under the precepts of Natural law. As demonstrated above, men give up certain rights, such as the right to punish, in exchange for security in the property rights they already possessed. For Rousseau,
What a man loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses.
TSC Book I, Section 8, para. 2. Thus, for Rousseau, proprietorship, or the right to property, doesn’t exist until one enters into the social contract.
Because Locke sees private property as a product of Natural law, he sounds almost like a member of the modern TEA Party when discussing legislation that infringes on it: “Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery, they put themselves into a state of war with the people.” CCG ¶ 222. I happen to agree with Rousseau. I don’t think property rights exist without a government to enforce, or at least declare, them. This informs my assessment of the modern discussion because I see complaints of slavery or oppression associated with taxation not only as wrong for the reasons listed by Warren, but because they are nonsensical since without the government supported by taxes no such right to property exists.
Does society merely make it possible to utilize our property, or is society responsible for all property rights?