Smith discusses Locke’s view of the original commons, before the institution of private property.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In On the Law of Nature and Nations (1672, trans. C.H. and W.A. Oldfather, Clarendon Press, 1934, p. 532), Samuel Pufendorf (one of the most influential modern philosophers of law) drew a crucial distinction between two possible meanings when we speak of a community of goods.

The term community is taken either negatively or positively. In the former case things are said to be common, according as they are considered before the interposition of any human act, as a result of which they are held to belong in a special way to this man rather than to that. In the same sense such things are said to be nobody’s more in a negative than in a positive sense; that is, that they are not yet assigned to a particular person, not that they cannot be assigned to a particular person. They are, furthermore, called ‘things that lie open to any and every person’. But common things, by the second and positive meaning, differ from things owned, only in the respect that the latter belong to one person while the former belong to several in the same manner.

The distinction drawn by Pufendorf—and by Hugo Grotius before him, if in a less explicit manner—is fraught with momentous implications. If, before the advent of private property, the earth and its resources were common in a negative sense, then this is to say that such resources were simply unowned and that everyone had a right to use them for his or her own benefit. But if the earth and its resources were common in a positive sense, then we had a primitive condition of joint ownership, and this would have required the unanimous consent of all the owners before any individual could legitimately appropriate property for his own use.

There has been a fair amount of scholarly controversy over Locke’s position on the primitive condition of common dominion. Locke, like every Christian philosopher before him, accepted as authoritative two key passages in the first chapter of Genesis, verses 26 and 28. Here is verse 26 (in the Revised Standard translation).

Then God said, “Let us make man in Our image, according to Our likeness; let them have dominion over the fish of the sea, over the birds of the air, and over the cattle, over all the earth and over every creeping thing that creeps on the earth.”

According to Sir Robert Filmer, Locke’s target in the First Treatise of Government, this grant of dominion was bestowed upon Adam as an individual. It was in virtue of this divine authorization that Adam became owner of the entire earth and its resources, after which title passed from Adam to his eldest male heirs. And since ownership of land entails political dominion, according to Filmer, Adam was also appointed by God as absolute monarch over the entire world—a power that was passed to his rightful heirs, as determined by the principle of primogeniture.

Locke had little trouble disposing of Filmer’s tortuous arguments for the divine right of kings, which was a relatively modern doctrine. Although earlier Christians had typically maintained that government is a divinely mandated institution, they had not gone so far as to claim that specific individuals were appointed by God to rule over others. (Many Catholic philosophers during the High Middle Ages invoked some version of consent theory.) But this was precisely the position defended by Filmer and other proponents of the divine right of kings. And this position, in turn, became the foundation, not only for modern absolutism, but also for the common claim of absolutists that kings were the legitimate owners of all land in their kingdoms. Thus when a king confiscated land from his subjects, or when he claimed absolute political sovereignty over inhabitants of that land, he was simply exercising his rights as a legitimate owner, an ownership originally bestowed by God upon Adam.

Although Filmer had died decades before Locke wrote his refutation, Filmer’s tracts were printed around 1680 to buttress the absolutism of Charles II and the Stuart dynasty generally. This background helps us to understand the contemporary significance of Locke’s First Treatise, even though much of it may strike the modern reader as tedious and irrelevant. Locke was not the only individualist of his time to take on Filmer; similar criticisms were written by Locke’s friend James Tyrrell (in Patriarcha non monarcha) and by Algernon Sidney (in Discourses Concerning Government). These critiques by three leading individualists of the seventeenth century testify to Filmer’s importance at the time.

Contrary to Filmer, Locke maintained that the passages in Genesis should be understood as a grant of dominion not to Adam in particular but to mankind in general. (He pointed out, for example, that Genesis says “let them have dominion,” not “him.”) But what exactly did this mean? Did Locke accept the negative or positive view of common property, as outlined by Pufendorf? Did he embrace the negative view of a community of goods, according to which the earth and its resources were originally unowned and that every person had an equal right to use those unowned resources, or did he believe that the earth and its resources were jointly owned in a positive sense by every person?

Modern scholars have disagreed in their interpretations of Locke. This is understandable, given that Locke never expressly took a stand on this issue; but the most reasonable interpretation, in my judgment, is that Locke agreed with Pufendorf’s negative understanding of the commons, before the advent of private property. This negative interpretation of Locke, according to which natural resources were originally unowned rather than jointly owned, was advanced by two early Lockeans: Jean Barbeyrac (1674–1744), a French philosopher and a translator of Pufendorf; and by Gershom Carmichael (1672–1729), a seminal figure in the early Scottish Enlightenment, who brought a Lockean perspective to bear in his commentaries on Pufendorf.

The negative interpretation has also been defended by some modern Lockean scholars. I especially recommend the detailed analysis by M. Seliger, The Liberal Politics of John Locke (Praeger, 1968), and the treatment in a superb book by Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (Clarendon Press, 1991). Buckle (p. 175) summarized Locke’s position as follows:

The world is given to mankind in common in such a way that it initially belongs to no one in particular—the original meaning of ‘common’ identified by Grotius, and termed negative community by Pufendorf. Locke insists that the world has been given in common in order to reject Filmer’s doctrine that the world is the private property of Adam and his heirs….

Since my essays are intended for a general audience rather than for academics, and since I am well aware that many of my readers may not be especially interested in what appears a rather technical issue—namely the distinction between a negative and positive understanding of the primitive commons—I feel I should again highlight the theoretical significance of this controversy. Suppose we accept the negative interpretation, according to which natural resources were originally unowned. In that case the justification of private property will not be especially difficult. But suppose, on the other hand, that we accept the positive interpretation, according to which natural resources were originally jointly owned. In that case private property will be quite difficult to justify, since the private appropriation of natural resources would require the consent of all the commoners. (For a nineteenth‐​century version of this difference, as manifested in Henry George’s criticism of Herbert Spencer, see my essay here.)

There can be no doubt that Locke was aware of Pufendorf’s distinction between negative and positive commons, since he praised Pufendorf’s work as the best book of its kind. And there are some important similarities between the two writers. Consider this passage from Pufendorf’s On the Law of Nature and Nations. After explaining the negative commons to be a situation before the emergence of private property in which “all things lay open to all men, and belonged no more to one than to another,” Pufendorf (p. 537) continued:

But since things are of no use to men unless at least their fruits may be appropriated, and this is impossible if others as well can take what we have already by our own act selected for our uses, it follows that the first convention between men was about these very concerns, to the effect that whatever one of these things which were left open to all, and of their fruits, a man had laid his hands upon, with intent to turn it to his uses, could not be taken from him by another.

Although Locke agreed that natural resources would be useless unless they could be appropriated for private use, he disagreed with Pufendorf’s emphasis on convention, or consent, as necessary to the establishment of private property. Indeed, in Chapter Five of The Second Treatise of Government, “Of Property,” Locke stated his intention to show “how Men come to have a property in several parts of that which God gave to Mankind in common, and that without any express Compact of all the Commoners.” The justification of private property, according to Locke, “does not depend on the express consent of all the Commoners.” (This position alone indicates that Locke’s view of the original commons was negative, not positive. There are other indicators as well.)

Attentive readers may have noticed that Locke specifically excluded the express consent of the commoners as a necessary condition of private property. But both Grotius and Pufendorf had specified that the necessary consent may be either implied or express, so Locke’s disagreement with his two predecessors may not have been so serious, after all. Locke, it should be noted, did assign some role for implied consent in this theory of property, but this is one of those troublesome and technical matters that I cannot discuss here. For our purpose, suffice it to say that Locke did not regard the consent of the commoners, whether express or implied, as essential to the moral justification of private property.

In this essay I have only provided some background on John Locke’s theory of property. Much more needs to be discussed, such as Locke’s emphasis on labor as the foundation of property (in contrast to “occupation,” which was defended by many of his predecessors), and his qualifications to the right of property—such as the so‐​called “spoilage proviso,” whose importance in Locke’s overall theory has sometimes been exaggerated. I shall therefore continue my discussion of Locke in the next essay. A more extensive discussion of Locke is justified because of his enormous influence on the theory of private property defended by many modern libertarians. Indeed, despite some problems in Locke’s account, he may be dubbed the father of the modern libertarian view of private property.