Locke’s Proviso

Some of the most challenging issues of intergenerational justice concern private ownership of land and other natural resources. Many have argued that, since these resources were not fashioned by people, but are rather the free gift of nature, they should be treated as public commons, unsusceptible to privatization. According to Leviticus 25:23, it is God's edict that "The land must not be sold permanently, because the land is mine and you are but aliens and my tenants."

In Agrarian Justice (1797), Tom Paine makes much the same point: “There could be no such thing as landed property originally. Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it: neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue."

Privatization of land or other natural resources becomes an intergenerational issue when the privatization is treated as perpetual. If the initial privatization cannot be justified, and the owner is allowed to bequeath the property to an heir, who is allowed to convey it in turn, then the removal of the asset from the commons effectively becomes a perpetual, intergenerational wrong.

Recognizing the significance of this issue, many scholars and legalists have addressed what is often characterized as "the problem of the initial acquisition of land." The best known apology for privatization is John Locke's labor theory of property, presented in chapter 5 of his Second Treatise of Government (1689).

Locke begins by acknowledging that the Earth is, in some sense, an intergenerational commons. He cites Psalms 115:16 for the proposition that “God gave the world to Adam and his posterity in common.” (Second Treatise at par. 25.) However, he argues that portions of the Earth may be legitimately removed from that communal status. The argument proceeds in this fashion:

1) It is a self-evident truth that each person owns their own self and their own body. If the truth is not self-evident, then it is nonetheless a premise that every individual has an interest in accepting.

2) Because each person owns their own body, they own the labor that they choose to perform with their body.

3) By mixing this labor that a person owns with materials that would otherwise be commonly held assets (the mixing might involve tilling, gathering, or otherwise developing), the laborer gains an interest in the materials that is superior to the interests of others who have not similarly mixed their labor with the assets. This superior interest justifies possession and ownership -- removal of the material from its commonly held status.

The most succinct exposition of the theory appears in Paragraph 27 of the Treatise:

"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. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others."

The last clause of that paragraph -- "at least where there is enough, and as good, left in common for others" -- is what has come to be known as Locke's Proviso.

Locke applies this rule to the appropriation of land, water, animals, and the fruits of the earth. To illustrate the principle, he explains in Paragraph 33, "Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst; and the case of land and water, where there is enough of both, is perfectly the same.”

The Proviso was probably articulated with intragenerational concerns in mind, more than intergenerational ones. Writing in the 17th century, Locke could not foresee how the overallocation or overutilization of natural resources by one or more generations would prejudice members of later generations. As he noted in paragraph 36 of the Second Treatise, “there is land enough in the world to suffice double the inhabitants.” Over the intervening centuries, however, the world’s population has doubled many times over, and Locke’s basic principles of just resource appropriation have implications today that were not readily apparent when he first formulated them.

Numerous commentators have noted that extending the Proviso’s coverage to include future generations would give due effect to the underlying principles of equity upon which the Proviso is based. Clark Wolf frames the argument as follows:

“The strongest argument in favor of the proviso is that it is necessary if initial appropriation is to avoid unjustifiably harming others. Since future generations are among those who might be harmed, justified initial appropriation must leave enough and as good for them as well.” Clark Wolf, “Contemporary Property Rights, Lockean Provisos, and the Interests of Future Generations.” 105 Ethics 791, 799 (1995).

Read in this way, the Proviso would, at a minimum, require that property rights be construed in such a manner as to prevent a variety of unsustainable practices -- practices which result, individually or cumulatively, in the extinction of species, or the depletion or spoilage of natural resources. Because such practices do not leave “enough and as good” for later tenants of the intergenerational commons, the right to engage in such practices is not a right which could ever be legitimately created or conveyed.

Of course, environmental harm is not the only way in which posterity's right to "as much and as good" can be thwarted by privatization. As many commentators have noted, when the population of the planet grows, resource availability that might once have been "enough as good" as what was appropriated earlier may no longer be as good. Take the example from paragraph 33, quoted above, involving one person's right to take a drink of water from a river, leaving adequate rights for everyone else. In the United States, this reasoning gave rise to private water rights in streams and rivers throughout the western states. Appropriations that may initially have left "enough and good" for others do so no longer. Much of the water in places such as Eastern Oregon's Klamath basin has been fully appropriated or overappropriated. Some individuals have access to large amounts of fresh water, while others have access to none. Perpetual allocations that appeared to be non-prejudicial at their inception have created inegalitarian resource distribution patterns in the present. The Proviso appears to have been retroactively violated.

Wolf describes the problem eloquently:

“Since the earth is finite, any appropriation at all makes the sum total of unappropriated land smaller, so there is less for others to appropriate. . . . The ultimate illegitimacy of later appropriation “zips back” to make the first act of appropriation similarly illegitimate. . . . Since there will be some point after which appropriation would not leave enough for others, no initial appropriation is consistent with the proviso. But if no initial appropriation was justified, then our actual claims, as descendants of prior illegitimate takings, cannot be justified either.” Clark Wolf, "Contemporary Property Rights . . ." supra at 798.

Locke's Proviso, orginally intended to justify the initial acquisition of land, and property rights in natural resources generally, has been increasingly employed in recent years to challenge both the legitimacy of perpetual land titles and the rights of individual property owners to manage their holdings in environmentally unsustainable fashion.

Submitted by John Davidson. Last modified August 22, 2010.

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