Property week 2 lectures
Theories of property
LA103 Introduction to the Law of Property Relations 2019-2020 Week 3 Lecture 3 Theories of Property
Why theorise? • We are always-already engaged in theorisation of some kind, and theories inform even
the most basic descriptions of what property ‘is’ in the first place.
• As the eighteenth century jurist William Blackstone writes, we are often reluctant to probe too deeply
into notions of property or rights to property, in case we find that our claim to property may be
illegitimate.
o “There is nothing which so generally strikes the imagination, and engages the affections of mankind as
the right of property; or that sole and despotic dominion which one man claims and exercises of the
external things of the world, in total exclusion of the right of any other individual in the universe. And
yet there are very few, that will give themselves the trouble to consider the original and foundation of
this right. Pleased as we may be with the possession, we seem afraid to look back to the means by which
it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of
the laws in our favour, without examining the reason or authority upon which those laws have been
built.” (William Blackstone, Commentaries on the Laws in England, Bk II Ch I, 1766).
Theories of Property
• There are countless theoretical approaches to the concept of property. • The approach we are taking
in this module is a critical and a historical one – examining one theorist in particular, John Locke, and
then exploring critiques of his theory and situating his theory within a broader social and political
context.
John Locke [1632-1704]
• John Locke is known both for his political liberalism and his philosophical empiricism (basically the idea
that we derive knowledge from reason and experience, rather than innate ideas). He was influenced by
thinkers such as Francis Bacon and Rene Decartes. For a good biographical overview of Locke’s life, see
https://plato.stanford.edu/entries/locke/#HistBackLockLife • He is an Enlightenment thinker, associated
with social contract theory. • He came from a relatively modest, Puritan background. He was an Oxford
trained academic and a medical researcher.
, • In 1667 he became the personal physician of Lord Anthony Ashley Cooper – who would become the
first Earl of Shaftesbury. It was in this capacity, as the aid of the Earl of Shaftesbury, that he became
involved in politics. • He also served as the secretary of the Board of Trade and Plantations and
Secretary to the Lords Proprietors of the Carolinas. • Locke’s “contexts” as they will be referred to are
important for understanding his theory.
Locke’s Context
• Locke served as a close aid and advisor of the Earl of Shaftesbury during the Glorious Revolution in
1688-1689. • The Glorious Revolution refers to a series of events that led to the deposition of King
James II, a Roman Catholic, from the throne, and the accession of Mary II and William. • Their accession
to the throne came with certain limitations and conditions on monarchical power, including the
limitation prerogative powers, the need for parliamentary consent for taxation, and the need for regular
parliaments. • Other important contextual factors include that Locke was a mercantilist and actively
involved in the colonisation of the Americas.
Sir Robert Filmer and the Divine Right of Kings
• Much of Locke’s Two Treatises of Government is spent refuting the ideas of Sir Robert Filmer and his
defence of the divine right of kings in Patriarcha. • Patriarcha was originally written as a defense of
absolute monarchy between 1638 and 1652, but it was republished in 1679/1680. His theories were
used by Tories at the time to help defend the monarchy and the idea of hereditary succession. • In his
defence of the divine right of kings, Filmer argued that the authority of the king derived from the
original authority of Adam. Adam had been given dominium over the earth by God, which was in turn
given to kings as a matter of divine right. o “The first government in the world was monarchical in the
father of all flesh. Adam being commanded to multiply, and people the earth, and to subdue it, and
having dominion given him over all creatures, was thereby the monarch of the whole world; none of his
posterity had any right to possess anything, but by his grant or permission, or by succession from him:
the earth (saith the Psalmist) hath' he given to the children of men: which shows, the title comes from
the fatherhood.” • As a consequence of this, all property rights were thought to derive from the crown –
this is known as the doctrine of tenure.
The Two Treatises of Government [1689]
Theories of property
LA103 Introduction to the Law of Property Relations 2019-2020 Week 3 Lecture 3 Theories of Property
Why theorise? • We are always-already engaged in theorisation of some kind, and theories inform even
the most basic descriptions of what property ‘is’ in the first place.
• As the eighteenth century jurist William Blackstone writes, we are often reluctant to probe too deeply
into notions of property or rights to property, in case we find that our claim to property may be
illegitimate.
o “There is nothing which so generally strikes the imagination, and engages the affections of mankind as
the right of property; or that sole and despotic dominion which one man claims and exercises of the
external things of the world, in total exclusion of the right of any other individual in the universe. And
yet there are very few, that will give themselves the trouble to consider the original and foundation of
this right. Pleased as we may be with the possession, we seem afraid to look back to the means by which
it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of
the laws in our favour, without examining the reason or authority upon which those laws have been
built.” (William Blackstone, Commentaries on the Laws in England, Bk II Ch I, 1766).
Theories of Property
• There are countless theoretical approaches to the concept of property. • The approach we are taking
in this module is a critical and a historical one – examining one theorist in particular, John Locke, and
then exploring critiques of his theory and situating his theory within a broader social and political
context.
John Locke [1632-1704]
• John Locke is known both for his political liberalism and his philosophical empiricism (basically the idea
that we derive knowledge from reason and experience, rather than innate ideas). He was influenced by
thinkers such as Francis Bacon and Rene Decartes. For a good biographical overview of Locke’s life, see
https://plato.stanford.edu/entries/locke/#HistBackLockLife • He is an Enlightenment thinker, associated
with social contract theory. • He came from a relatively modest, Puritan background. He was an Oxford
trained academic and a medical researcher.
, • In 1667 he became the personal physician of Lord Anthony Ashley Cooper – who would become the
first Earl of Shaftesbury. It was in this capacity, as the aid of the Earl of Shaftesbury, that he became
involved in politics. • He also served as the secretary of the Board of Trade and Plantations and
Secretary to the Lords Proprietors of the Carolinas. • Locke’s “contexts” as they will be referred to are
important for understanding his theory.
Locke’s Context
• Locke served as a close aid and advisor of the Earl of Shaftesbury during the Glorious Revolution in
1688-1689. • The Glorious Revolution refers to a series of events that led to the deposition of King
James II, a Roman Catholic, from the throne, and the accession of Mary II and William. • Their accession
to the throne came with certain limitations and conditions on monarchical power, including the
limitation prerogative powers, the need for parliamentary consent for taxation, and the need for regular
parliaments. • Other important contextual factors include that Locke was a mercantilist and actively
involved in the colonisation of the Americas.
Sir Robert Filmer and the Divine Right of Kings
• Much of Locke’s Two Treatises of Government is spent refuting the ideas of Sir Robert Filmer and his
defence of the divine right of kings in Patriarcha. • Patriarcha was originally written as a defense of
absolute monarchy between 1638 and 1652, but it was republished in 1679/1680. His theories were
used by Tories at the time to help defend the monarchy and the idea of hereditary succession. • In his
defence of the divine right of kings, Filmer argued that the authority of the king derived from the
original authority of Adam. Adam had been given dominium over the earth by God, which was in turn
given to kings as a matter of divine right. o “The first government in the world was monarchical in the
father of all flesh. Adam being commanded to multiply, and people the earth, and to subdue it, and
having dominion given him over all creatures, was thereby the monarch of the whole world; none of his
posterity had any right to possess anything, but by his grant or permission, or by succession from him:
the earth (saith the Psalmist) hath' he given to the children of men: which shows, the title comes from
the fatherhood.” • As a consequence of this, all property rights were thought to derive from the crown –
this is known as the doctrine of tenure.
The Two Treatises of Government [1689]
