In this paper, I explore the views put forth by John Locke and David Hume on the nature of property rights. My focus will be on the underlying distinction between their views which contests whether property rights are derived from natural law or from artificial constructs. I will explore the implications of these views in a technological context.
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Locke & Natural Property Rights
In discussing Locke’s views on the nature of property, I focus on the initial acquisition of property and the circumstances by which it derives its natural right status, and leave aside restrictions on accumulation arising from Lockean provisos, or interpretations of future commentators on the implications of these provisos.
Locke begins his discussion of the nature of property by establishing important theological foundations:
God, who hath given the world to mankind in common… all the fruits it naturally produces and beasts it feeds, belong to mankind in common… and nobody has originally a private domain exclusive of the rest of mankind. (Locke, 26)
Because the world is owned commonly by all of mankind, and there can be no original private claims to property, there must be a way to appropriate goods for personal use without the consent of all of mankind. In other words, it must somehow be possible to bring objects from the common domain into private ownership. For Locke, this initially occurs in the context of the “State of Nature”, where, although God (the creator of man) holds a property right over Man, Man holds an inalienable right to acquire property through his labour:
…labour put a distinction between them and common. That added something to them more than Nature, the common mother of all, had done, and so they became his private right…The labour that was mine, removing them out of that common state they were in, hath fixed my property in them. (Locke, 28)
The act of mixing ones labour with some object creates a property right, which is founded in a universal, natural law that does not need to be upheld by societal institutions, because it draws its legitimacy from God himself. This view in a Lockean context does not require theological endorsement, as it may be that mixing ones labour with a thing creates a deep, metaphysical connection that manifests as an inalienable “property right”, a phenomenon similar to physical laws of nature. In Locke’s view, because God created us through his labor, suicide (even in the State of Nature) is prohibited, as we do not own ourselves. (Locke, 6)
While it initially appears that property rights are fundamental, absolute laws, especially because of the seemingly universal application that arises from Locke’s prohibition on suicide, closer examination reveals this is not the case. As pointed out by Dick, Locke’s property rights, especially regarding food, are best understood as a permission from God. Given that God’s commandments (natural laws) exist in the State of Nature, in the absence of the labour theory of property, Man is faced with a paradoxical predicament:
To obey the command to preserve human life, we must steal, but to obey the commandment against stealing, it seems we must perish. (Dick, 2017)
In effect, property rights (through the labour theory of property) are an innovation that arise out of a necessity to obey God’s pre-existing commandments. We must not infringe upon the rights of others by stealing what is held commonly by all mankind, but we must also not allow ourselves to perish–effectively allowing suicide–because we do not own our bodies. Property rights, then, serve as an instrument derived to resolve an otherwise paradoxical and wasteful position. Importantly, however, property rights must always respect and remain subservient to the fundamental law from which they are derived. This reading of Locke maintains the natural foundation of private property rights (acquired through the labour theory of property), but stops short of granting fundamental, independent authority. While property rights are indeed natural in nature, they are derived from an overarching fundamental law, and therefore fall short of being absolute, inalienable metaphysical truths in their own right.
Locke’s labour theory of property, then, is crucial to his natural understanding of private property rights. Concerns do arise, however, with regards to the “direction” of appropriation. Why, for example, does mixing labour give you a right to a thing, rather than give up your labour? Locke, as highlighted by Shrader-Frechette, believes that mixing ones labour with something gives it value, and in return gives one property rights to it, for several reasons. First, as explored earlier, there is a need for labour-based appropriation, as if it were not permissible, people would perish waiting for consensual agreements to arise. Second, labour-based appropriation is efficient because it improves the overall economic value of land, ultimately improving the quality of goods available to all humans. Third, those who obey God and employ their industrious and rational nature deserve the fruits of their labour as a reward. Finally, Locke believes that labour is typically responsible for much of the value in things, and therefore it is akin to the act of creation, in which the creator is entitled to his creation. (Shrader-Frechette, 1993)
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Hume & Artificial Property Rights
Hume, writing largely in response to Locke, argues that property rights are not natural or founded in a universal truth, rather they are an artificial (but necessary) human construct. Despite also employing an empirical methodology, Hume does not derive his view by invoking the State of Nature, nor does he build upon theological foundations.
Society, to Hume, while offering several advantages to Man by augmenting “force, ability, and security”, is not accessible in the “wild, uncultivated state” as Men do not have the ability (left to their own devices) to rationalize and discover these advantages merely through thought and reflection. (Hume, 3.2.2.3) Fortunately, the foundations of society are built on the nucleus created by family, which results from an uncontrollable necessity:
This necessity is no other than that natural appetite betwixt the sexes, which unites them together, and preserves their union, till a new tye takes place in their concern for their offspring. (Hume, 3.2.2.4)
The bond between parents and their children and the benefits (particularly to children) which arise “make them sensible” to the benefits of society by “roughing off those rough corners and untoward affections which prevent their coalition.” This is an important point of differentiation for Hume as in contrast to Locke, society does not require a fundamental law of nature (theological or metaphysical) to guide and judge human action. Instead, Men are guided by their commitment to family and friends, and as a result any notion of morality and justice is founded in an arbitrary, entirely partial standard that prioritizes those closest to us. Therefore, there is no natural, fundamental law that we are subject to, and it would be naïve to think otherwise. Hume then defines three “species of goods”:
The internal satisfaction of our mind, the external advantages of our body, and the enjoyment of such possessions as we have acquir’d by our industry and good fortune… the last only are both expos’d to the violence of others, and may be transferr’d without suffering any loss… there is not a sufficient quantity of them to supply every one’s desires and necessities. (Hume, 3.2.2.7)
The final category of goods, it seems, is the class of items we refer to when speaking about any notion of private property. It’s clear to Hume that the principal benefit of society lies in improving the state of these goods, which is hindered most notably by the inherent instability of their possession along with their limited availability. Furthermore, the uncultivated natural tendency of man that favors moral commitments only to family, particularly in the context of scarcity, is bound to create temptations that result in taking that which is in possession of others. At this juncture, there is no such thing as private property as there is no natural (or artificial) notion of justice urging otherwise. In fact, it seems that in this state what is just is what is necessary for the sustenance of oneself and one’s family. The familial foundation of society, then, serves to exacerbate the inherent instability of the third class of goods, reaffirming our partiality with “additional force and influence”, ultimately bringing us farther from any natural law that ought to govern our actions. (Hume, 3.2.2.8)
The solution to this state lies in a remedy derived from “artifice”. It is by our common interest that Men enter into society, as the principal disturbance in human life arises from the “looseness and ease of transition” that this third class of goods exhibits. The formation of any society, therefore, must be predicated on a solution to this key problem, specifically the instability of possession of these goods. By observing the characteristics of the other two classes of goods (mind and body), we then try to create a convention that best puts external goods on the same footing as these unproblematic internal goods. Notably, this convention is in our common interest as it allows us to enjoy the necessities crucial to ourselves and our families. (Hume, 3.2.2.9) It is only after this fundamental human construct is established that anything similar to “natural law” originates:
After this convention, concerning abstinence from the possessions of others, is enter’d into, and everyone has acquir’d stability in his possessions, there immediately arise the ideas of justice and injustice, as also those of property, right, and obligation. (Hume, 3.2.2.11)
This core convention, to Hume, is the very foundation of justice. Any explanation of the idea of rights (particularly by natural means) is unfounded without first providing an explanation of justice. It’s clear however, that justice must also be an artificial construct, as it requires the establishment of another artificial convent before it may arise. Once that happens, laws are created to codify the laws of society (or justice), which then make use of rights. It is clear, then, that the convention requiring the distinction of property and the stability of possession is the most fundamental step towards society. Contrary to Locke, society is required to establish and legitimize property by means of a still artificial construct. Even then, the convention to abstain from the possessions of others does not in itself constitute property rights. Property itself is nothing but “those goods, whose constant possession is established by the laws of society”, and requires the idea of justice to first arise. Any explanation of this process, to Hume, that presupposes some natural existence of justice and law in order to derive property rights is a “gross fallacy”. (Hume, 3.2.2.11)
While Hume does not directly counter Locke’s labour theory of property and the mixing of labour to appropriate property, he challenges the idea of natural, fundamental rights by further considering how universal they truly are. He does so by arguing that there are instances in which the distinction of private property is lost, and everything remains common. In particular, “married people… are unacquainted with the mine and thine”. (Hume, 3.2.2.17) Of course, this does not necessarily mean that they lose natural rights to things they have mixed their labour with, nor that they may not consent to some amended form of ownership. A stronger point made by Hume comes in the form of varying the underlying drivers of justice. The inherent reason behind our urge to possess the goods of others is a mismatch between our internal qualities and our external environment, and this is where justice derives its origin. (Hume, 3.2.2.18) For example, it is because our internal disposition is one of limited altruism and driven by our need to acquire goods (for ourselves and our families), and our environment is one typified by scarcity, that we require artificial conventions to abstain from the possessions of others. It is in this context, Hume argues, that any natural notion of property rights is conceived.
But what would happen if we were to vary the two underlying factors? For example, Hume offers the examples of air and water, which (at least in his time) would not be subject to any property claims. If something (like air) is so abundant, and if by its very nature it does not require any altruism on our part (leaving aside cases of pollution), why then would we claim property over it? This is corroborated by the fact that we do not apply property rights to air, despite the fact that we may wish to say that it is commonly owned, and brought into our domain through our labour (breathing). While Hume’s point here does not directly contradict Locke, it does question the apparent universality of the labour theory of property and the rights it grants. Furthermore, if we were to imagine a hypothetical world in which everything were as abundant as air, and humans exhibited unlimited altruism, it seems that the idea of property would never need to be constructed, as the internal and external circumstance of humans would be in alignment. At the opposite extreme, if humans exhibited no altruism and lived in a world with significant scarcity, we would not hesitate to take from others, and property would not arise. In the first example a convention requiring the abstinence from the possessions of others would not be necessary, and in the latter example the same convention would not be able to arise. (Hume, 3.2.2.17) Leaving aside any theological foundations, it is clear that claims to property in either extremes, even if true by some metaphysical truth, would be irrelevant and would go unobserved.
After their initial creation, Hume argues that property rights can be gained in four distinct ways, namely: occupation, prescription, accession, and succession. Hume has not received significant sponsorship behind this particular view, and he is not entirely clear on each method, but as I’ll discuss in the next section, they may yet be of value. Briefly, occupation refers to the first possession of a thing (at the point when we first enter society), prescription refers to property that arises out of possession over a long period of time, accession is the process by which property of related objects is acquired, and succession is, as in the traditional sense, the transfer of property between generations.
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Applicability in Modern Technological Contexts
To consider the viability moving forward of either one of these theories, and ultimately of the nature of rights as natural or artificial, applying them to technological contexts yields some interesting results. Whether currently observed or as future possibilities, property rights continue to manifest in unique and challenging ways in technological contexts. Specifically, I will consider property rights as they apply to Bitcoin (blockchain) technology and Artificial Intelligence, and will leave aside commitments to theology.
Bitcoin
Bitcoin operates on underlying blockchain technology, which is a decentralized network of computers, collectively charged with maintaining its credibility. The blockchain is essentially a vetted ledger of historical transactions that, once validated, are set in stone. The computers in this system are “miners”, and are rewarded for their work through the discovery of new Bitcoin.
Interestingly, this system seems to be inspired by Locke’s theory of property. In the same way that property belongs to everyone in common and must be appropriated by mixing personal labour, the miners in the blockchain are part of an inherently decentralized, and therefore commonly owned network, which requires them to “mine” with their labour (computational power in this case) into the commons, and are rewarded by the appropriation of Bitcoin, which is then owned privately by them. In a sense, the network converts the unowned nature of the commons straight to privately owned money. Locke might see this and marvel at the ingenuity of the technology, particularly because it rewards the mixing of labour by creating a property right. As highlighted by Shrader, this would also be aligned with the reasons for which labour ought to be the basis of property. For one, there is an inherent need. Bitcoin mining was not invented to deal with hunger, rather to deal with the issue of verification. This ingenious stroke of reasoning created a method by which the network’s overriding law of inviolable accuracy is achieved by rewarding those that work to ensure its credibility.
The Bitcoin system seems as though it is the ideal non-human manifestation of Locke’s labour theory of property, until Hume of course points out that this entire phenomenon is a function of a constructed technology, and is ultimately not grounded in natural law. The incentive to mine Bitcoin, for example, is derived from the inherent scarcity of its existence, which continues to become scarcer over time. If this were not the case and Bitcoin was abundantly available, miners could be granted a “property right” to Bitcoin for their efforts, but it would be meaningless as the property right would fail to have any value. Alternatively, it is because of the network that the underlying “looseness” of the currency (or any currency) is reduced, which is the principal problem as it relates to currency. The network is valuable because it reduces this feature of this class of goods (currency) that when left without a centralized vetting system, are prone to forfeit.
This presents a bit of a chicken or the egg problem. While in Locke’s view it is the labour that grants an inviolable property right to bitcoin, and therefore it is this mechanism by which the miners derive private property from the commons, Hume’s view would suggest that it is by virtue of the qualities exhibited by currencies, particularly virtual currencies, that individual agents entered into a network which first and foremost upheld the validity of its currency. It does, of course, seem that there is at least come underlying natural view that upholds and respects the claim that a miner has to the bitcoin they have mined.
Artificial Intelligence
In terms of artificial intelligence, I am interested in a scenario that is very likely to occur in the forthcoming future. Even today, artificially intelligent programs, while programmed by humans, are beginning to program themselves along with other artificially intelligent programs. We do not always understand, nor do we dictate, the reasoning utilized by such networks when they construct programs, rather we tend to observe their successful outcome. It is very likely that within the near future, general artificial intelligence will surpass humans in programming ability, and will therefore construct software that we will use, despite not creating it nor fully understanding it. It is this inevitable phenomenon that poses some interesting questions for notions of private property.
In Locke’s view, the only thing that we have property over in the state of nature is our own labour. We do not own our bodies however, as they are property of the God that created them. In the modern age then, it is reasonable to assume that anything created by a human through their labour is owned mostly by them. Although resources from land will likely remain at least slightly commonly owned, labour, as mentioned earlier, is responsible for the vast majority of the value of something. But when we began to code and construct programs, seemingly through the manipulation of ideas and theorems rather than physical goods, even if a common claim remained, it would seem as it would be exceedingly small, if not completely mute. It is fair to assume, then, that any program coded by a human, whereby their labour is mixed these ideas, produces a private property right to the program they create.
So what happens when programs begin to create programs? In the same way that God does not own the programs we create, despite owning us, it would seem as though we have no property right over the software that is coded by artificial intelligence. Assuming that it does so by means of reasoning that are not understandable by us, and therefore are not of our creation, if we leave aside a distinct theological status granted to us, we must be willing to say that by virtue of mixing its labour with ideas, the artificial intelligence has established a property right over the thing it creates. But if this intelligence is not sentient, how exactly will it consent to let us use its property? Keeping in mind that the scenario I am presenting does not require us to reach the “singularity”, only that artificially intelligent programs have the ability to code unique software. Furthermore, if this software were to be monetized and (by virtue of its likely superiority) replace human created services, who then is entitled to the profit? On Locke’s view, we are entitled to the fruits of our labour, but it does not seem entirely clear how it would be that we are entitled to the fruits of our labour’s labour. And if it turns out that we do have a secondary claim, what about the next generation of self-emulating programs, and the next? It does seem unlikely under the labour theory of property that we maintain a natural right to these programs. If the theory is correct, it seems difficult to reconcile how it might be that a computer program, by virtue of its advanced intelligence, establishes a property right to the software that runs our world because it is responsible for mixing its labour with it. Importantly, because the reasoning employed by such programs tends to be inaccessible to us, it is also not possible for us to truly replicate them. This leaves the natural rights view in an unclear and uncomfortable position.
Hume’s view, while not specifying how it is that possession of a property right comes about before society is formed, leaves us with the notion that once society is formed, we must build upon that which is already possessed. Afterwards, there are various means (as mentioned earlier) for property to transfer. In taking this approach, Hume circumvents the problem that plagues Locke’s theory in this example. Because property does not necessarily arise as a function of a metaphysical truth driven by labour, the creation of software by artificially intelligent programs does not immediately invoke a right to anything. This phenomenon can only be explained in the context of what is already possessed. So, given that the starting point of this creation begins with a human, Hume conceivably has an option available to him to describe property rights, without having to suggest that property rights ought to be given to a robot.
For Hume, we acquire the property of objects through the process of accession when they are connected in an intimate manner with objects that are already our property, and, importantly, are inferior to them. The idea of inferiority is integral to this view, and is not grounded in some natural law, but rather in our imagination as humans. Regardless, while it may be in our minds, we attribute the continuation of property through accession in cases such as the fruits that grow in our garden, or the offspring of cattle. (Hume, 3.2.3.10) This is allowable for Hume, as his underlying view rests on property being founded in artificial construction, not some fundamental law. So, it seems that Hume offers a solution to the problem of artificially intelligent programs creating software, in the same way that accession attributes the property rights of all offspring of a cow that is owned by a farmer, to the farmer. It does not matter, then, if an artificial intelligence programs software that becomes the bedrock of our society, because just as the farmer is entitled to the cattle, the human that initially programmed the software is entitled to the work it produces. This holds true for all future generations of that program, and if the human that created it were to die, it would seem that the ownership would pass to the human’s offspring. Therefore, while Locke’s labour theory of property is tempting and seems intuitive, natural rights may face troubling circumstances in contexts that society may soon experience. Hume would reinforce this point, by once again bringing up the failure of property rights to arise at the extremes.
Note: I have referenced Locke’s and Hume’s works with respect to the paragraphs in which they appear in the texts below.
Dick, G. D. (2017). Hunger, Need, and the Boundaries of Lockean Property. Retrieved from University of Calgary D2L site: https://d2l.ucalgary.ca
Hume, David. (1740) 1995. A Treatise of Human Nature. Edited by Mark C. Rooks. The Complete Works and Correspondence of David Hume. Charlottesville, VA: InteLex Corporation.
Locke, John. (1680) 1995. Two Treatises of Government. Edited by Mark C. Rooks. The Philosophical Works and Selected Correspondence of John Locke. Charlottesville, VA: InteLex Corporation.
Shrader-Frechette, K. (1993). Locke and Limits on Land Ownership. Journal of the History of Ideas, 54(2), 201-219. doi:10.2307/2709979