1. 1 A Reconstruction of: James Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” Jeffrey C. Witt Boston College February 10, 2011

2. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 2 Section I: Sir Robert Filmer on Property and the Interpretation of Genesis 1:28 Genesis 1:28: God blessed them and said to them, “Be fruitful and increase in number; fill the earth and subdue it. Rule over the fish in the sea and the birds in the sky and over every living creature that moves on the ground.” Patriarcha (1680)

3. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 3 Filmer’s Critique of Grotius “Filmer pounces on the apparent inconsistency that natural law is said to sanction common property in the state of nature and private property in political society” (Tully, pp. 102-103). Of Grotius, Filmer writes: “Grotius says that by the law of nature all things were first common, and yet teacheth, that after propriety was brought in, it was against the law of nature to use community. He does thereby not only make the law of nature changeable, which he saith God cannot do, but he also makes the law of nature contrary to itself. (Filmer, Patriarcha and other political works, ed P. Laslett (Oxford: Basil Blackwell, 1949), p. 274). The Contradiction is:if everything, from Nature (by Natural Law), first belongs exclusively to no one, how can it also be that later, again by Nature, property belongs to someone privately? It must be either one or the other. [Power is either natural or arbitrary.]

4. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 4 Filmer’s Alternative to Grotius – His Interpretation of Genesis Property: God’s gift to Adam As paraphrased by Locke: “This Fatherly Authority then, or Right of Fatherhood, in our A_’s sense is a Divine unalterable Right of Sovereignty, where a Father or a Prince hath an Absolute, Arbitrary, Unlimited, and Unlimitable Power, over the Lives, Liberties, and estates of his Children and Subjects; so that he may take or alienate their Estates, sell, castrate, or use their Persons as he pleases, they being all his slaves, and he Lord or Proprietor of every Thing, and his unbounded Will their Law”(Locke I.9; cf. Tully, p. 110).

5. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 5 Section II: Rights and Property in the Scholastic Natural Law Tradition Francisco de Vitoria (1492-1546) FranciscoSuárez (1548-1617) Thomas Aquinas (1225-1277)

6. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 6 Objective and Subjective Rights Subjective Right (R2) A subjective right is a right which an individual is said to have or to possess, such as a right to education or to a material object” (Tully, p. 103) Objective Right (R1) “This is distinguished from the objective concept of right, when we say that such and such is right or the right thing to do” (Tully, p. 103) The late scholastics wanted to tether and ground subjective rights is some objective feature about the world. Example: Because it is right (R1) and good that human beings should learn, you have the right (R2) to learn or get an education.

7. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 7 Two ‘Objective’ Uses of the Word “Right”‘ius’ Justice /(R1)Right: A general word for (R1G): “that which is just” (De legibusac Deolegislatore(1612), I.2.4-5; Tully, p. 104) A specific word for (R1S): “that which is equitable” (De legibus, I.2.4-5; Tully, p. 104) “’Right’ in the specific sense, the object of justice in the specific sense, refers to the equity which is due to each individual as a matter of justice” (Tully, p. 104)

8. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 8 Two Subjective Rights (R2) Grounded in Justice/Right as Equity (R1S) A right to “that which is rightfully his own” (ius in re) (cf. Tully, p. 104) R2 in re: A right to “that which is due to him”) (cf. Tully, p. 104) R2 ad rem:

9. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 9 Train Analogy Inclusive Right  claim right iusus ad rem iusus in re  right to exclude  Exclusive Right

10. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 10 Suarez’s Interpretation of Genesis “Nature has conferred upon all men in common dominion over all things, and consequently has given to every man a power to use those things; but nature has not so conferred private property with that domain.” (Suarez, de legibus, 2.14.14; qtd. in Tully, p. 106)

11. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 11 Distribution of Private Property Like in the Train Example: The Common Dominion as a Clam Right means: We have an exclusive right to SOME of what we possess in common. . . HOW MUCH?

12. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 12 The Most Important Take-Away “The striking feature of this sort of theory is that private and common property are interdependent rather than mutually exclusive concepts” (Tully, p. 107) Dominion (Property in a generic sense) As opposed to . . . Common (as Claim Right) Private (as Exclusive Right)

13. 13 Section IV: Conflation of “Dominion” with Private Property in Grotius

14. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 14 Collapse of two subjective rights into one with only one corresponding object Dominion Commons Unclaimed (No Inclusive Right) Private (Exclusive Right) Dominion When Grotius discusses the origin of property he uses dominium and proprietas interchangeably, since they both denote the same exclusive right. . .” (Tully, p. 108) Common (as Claim Right) Private (as Exclusive Right)

15. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 15 Theater Analogy

16. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 16 Section V: Locke’s Re-Interpretation of Genesis

17. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 17 Review of Filmer’s Interpretation of Genesis Property: God’s gift to Adam As paraphrased by Locke: “This Fatherly Authority then, or Right of Fatherhood, in our A_’s sense is a Divine unalterable Right of Sovereignty, where a Father or a Prince hat an Absolute, Arbitrary, Unlimited, and Unlimitable Power, over the Lives, Liberties, and estates of his Children and Subjects; so that he may take or alienate their Estates, sell, castrate, or use their Persons as he pleases, they being all his slaves, and he Lord or Proprietor of every Thing, and his unbounded Will their Law (Treatise 1.9; cf. Tully, p. 110)

18. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 18 Review of Grotius’ interpretation Of Grotius, Filmer writes: “Grotius says that by the law of nature all things were first common, and yet teacheth, that after propriety was brought in, it was against the law of nature to use community. He does thereby not only make the law of nature changeable, which he saith God cannot do, but he also makes the law of nature contrary to itself.” (Filmer, Patriarcha and other political works, ed. P. Laslett (Oxford: Basil Blackwell, 1949), p. 274; qtd. In Tully, p. 103)

19. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 19 Locke’s Interpretation of Genesis(in the language of Suarez) I shall shew . . . That by this grant God gave him not Private Dominion over the Inferior Creatures, but right in common with all mankind; so neither was he Monarch, upon the account of the Property here given him.” (First Treatise on Government, 1.24; qtd. In Tully, p. 111) “Whatever God gave by words of this Grant . . . It was not to Adam in particular, exclusive of all other men; whatever Dominion he had thereby, it was not a Private Dominion, but a Dominion in common with the rest of mankind (First Treatise on Government, 1.29; qtd. In Tully, p. 111)

20. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 20 Derivation of Exclusive Right from Natural Law Claim Right (Inclusive) Duty 1: Preserve yourself = Right 1: The right to preserve yourself Duty 2: Preserve oneself and others = Right 2: The right to preserve yourself and others Claim Right (Inclusive) “Men, being once born, have a right to their Preservation, and consequently to Meat and Drink, and other such things, as Nature affords for their Subsistence” (Second Treatise on Government 2.25; qtd in Tully, p. 113) Right 3: Right to Property Exclusive Right

21. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 21 Section V. The self-limiting nature of exclusive rights and the limits of government St. Anthony, Patron of the Poor

22. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 22 What is Robbery? Is it ever Justified? His natural right, or property, gives the needy the moral justification to take what they need from the conventional property of others.” (Tully, p. 113) Why? “The moral claim to the means of preservation overrules the purely legal description of such an act as theft. The man’s need creates a title in the goods of another, thus individuating his natural right not to be excluded from the means of preservation.” (Tully, p. 113)

23. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 23 What are the political implications of the self-limiting nature of property? Locke’s Second Treatise on Government, chapter 13, n. 149 “Yet the legislative being only a fiduciary power to act, there remains still in people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them. . . “. . . And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject.” “For no man, or society of men having a power to deliver up their preservation, or consequently the means of it, to the absolute will and arbitrary dominion of another; whenever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve what they have not a power to part with; and to rid themselves of those who invade this fundamental, sacred, and unalterable law of self-preservation, for which they entered society.”

24. Reconstruction of Tully’s “The Framework of Natural Rights in Locke’s Analysis of Property” 24 Conclusion We now know that the unalterable claim right to not be excluded from the MEANS needed for self-preservation, means being allowed to have an exclusive right to the MEANS necessary for this preservation. Just as a case could be made for legitimate robbery, so a case can be made for legitimate insurrection. To Hobbes, Locke replies: peace is not enough. I must also have the means to care for myself and others or peace is not worth having.