I can’t be the first one to have spotted this, but I’m teaching Locke tomorrow, and on my nth reading of Second Treatise chapter 5, it suddenly occurs to me that the assumption commonly attributed to Locke as the starting point of his discussion of property in the Second Treatise is much more puzzling than I had previously realized. Locke says that revelation makes clear that God gave the world “to mankind in common.” But how can that be, if God gave the Promised Land to Israel?
Sec. 25. Whether we consider natural reason, which tells us, that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence: or revelation, which gives us an account of those grants God made of the world to Adam, and to Noah, and his sons, it is very clear, that God, as king David says, Psal. cxv. 16. has given the earth to the children of men; given it to mankind in common.
The Scripture passage Locke cites, Psalms 115:16, has absolutely no bearing on the issue of whether God gave the world to men or mankind in common. Its point is simply that the sublunary world belongs to humans by contrast with the heavens, which belong to God: “The heaven, even the heavens, are the Lord’s: but the earth hath he given to the children of men” (KJV). That God gave the earth to “the children of men” doesn’t tell us which children he gave what parts of it to, and certainly doesn’t entail that he gave all of it to mankind in common. Anyway, it’s hard to think of a more inapt text for the world’s being given in common to mankind than one reporting the thoughts of one of the chief beneficiaries of its not being given in common to mankind, King David.
Initial appropriations are either legitimate or not. If appropriation-by-divinely-sanctioned-conquest is legitimate, God cannot have given the world to all of mankind in common. He gave it to some at the expense of others. But if the acquisition of Canaan is not legitimate appropriation but conquest, and “conquest may be called a foreign usurpation,” (ST, 197) are God and Israel foreign usurpers? A dilemma.
Supposing those options aren’t exclusive: if the Canaanites initially appropriated Canaan by Lockean strictures, but the donation of Canaan to Israel is rectification for the past grievances they suffered in Egypt, are divinely-sanctioned property rights so weak that Canaanite property rights can be overturned because of Pharoah’s depredations against the Hebrews? Or is the claim that the Israelites get Canaan because of grievances they suffered in Canaan at Canaanite hands? When was that?
The matter is under investigation.
Policy of Truth 
Have you looked through the First Treatise? That’s where he explicitly defends, in greater detail, the interpretation of its being given to mankind in common. The brief references in the Second Treatise are just “previously on Locke” clips.
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I’ve read the First Treatise, but not for awhile, and not with this specific issue in mind, so I’m eager to go back and take a look. I’m just struck, on my most recent reading of the Second Treatise, at the tendentiousness of Locke’s readings of Scripture, especially in the chapter on property–at least if the Second Treatise is read apart from the First. E.g., paragraph 31 says that the “same law of nature that does by this means give us property, does also bound that property, too.” Then: “God has given us all things richly, 1 Tim vi. 12, is the voice of reason confirmed by inspiration.” Come on, John! Read in context, that seems like textual cherry picking at its finest. Nothing in 1st Timothy suggests that “God has given us all things richly” means what Locke wants it to mean.
Likewise, paragraph 38 invokes Genesis 13.5 (on Abraham and Lot) to prove that “at least a great part of the land lay in common.” But all that Genesis 13.5 says is that Abraham and Lot were unable to live together, i.e., in the same vicinity. Genesis 13.7 says that “the Canaanite and the Perizzite dwelled then in the land.” It’s a mystery how Locke gets “at least a great part of the land lay in common” out of that. Unfortunately, I’m not up on the literature on Locke as Scripture-reader (though I know there is one); it’s only recently occurred to me that to get Locke right, you have to address that issue in a sustained way. I had to read Locke in Palestine to see how integral the Bible was to Locke’s theorizing. I was more or less blind to it before then.
Am I over-reading, or does Locke’s principle sound like it echoes Portia’s speech in The Merchant of Venice?
Locke: The same law of nature that does by this means give us property does also bound that property, too.
Portia: Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. (Act IV, Scene 1)
It could just be an incidental similarity in wording, but it almost sounds as though Locke is offering an answer to Portia–i.e., that his (Locke’s) conception of the law of nature makes Portia-style mercy superfluous. Or put another way: that Lockean justice assimilates mercy to it, making the claims of mercy claims of justice. In other words, if we follow the law of nature, its content is such that we needn’t deviate from or leaven justice to get the “merciful” results that Portia wants; properly understood, justice itself secures them.
Call it a Shy(lockean) response to Portia. Of course, I have no idea whether Locke actually read The Merchant of Venice or not. Another “matter under investigation.”
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I just re-read Locke’s First Treatise. Though he occasionally seems to nibble at the edges of the question (e.g., FT, 128, 148, 162), he doesn’t directly address it. (The question being: how does Locke reconcile his claim that God gave the world to mankind in common with the fact that God gave Canaan to Israel? Is that an exception to the rule, or somehow consistent with it?) At best, I think the First Treatise allows us to guess at an answer, but I’d need to re-read all of Locke with a view to he reads the Hebrew Bible to know for sure (assuming there is an answer).
The First Treatise is a polemical response to Filmer’s Patriarcha, so almost everything Locke says is tailored to that end. But since Locke goes out of his way to distinguish rule/sovereignty from ownership, and takes Patriarcha to be a theory of rule/sovereignty, he only discusses property in passing so as to respond either to Filmer’s conflation of rule and ownership, or to Filmer’s ad hoc claims that ownership confers rule.
So I wouldn’t even go so far as to say that Locke explicitly defends the claim that the world was given to mankind in common in the First Treatise. What he discusses is whether the world was given in common to the sons of Adam and Noah (A: yes), not to mankind as such. Locke himself insists against Filmer that all historical claims get muddled after the fall of the Tower of Babel (FT, 143). That claim is supposed to refute Filmer’s claim that Adam’s political sovereignty was passed to subsequent kings. Locke doesn’t seem to see that the very problems that undermine Filmer’s claims about sovereignty potentially undermine Locke’s claims about property. If the world was given in common to Adam’s and Noah’s heirs, but things got muddled after the fall of the Tower, then all property claims are bound to be as dubious as all post-Babel claims to sovereignty. So Locke’s confidence in the congruence of right and convenience with respect to property seems gigantically misplaced (ST, 51).
I guess Locke could say: just as God gave the world in common to Adam & Sons and Noah & Sons, so by the same reasoning, we can presume that he gave it to the rest of the human race–whereas the same presumption can’t be made in the case of sovereignty. Fair enough. I’m not sure he ever really puts things that way, however. The focus in FT is specifically on Adam and Noah and sons.
So I don’t see that the reasoning he gives in the First Treatise is any more detailed or explicit than what he gives in the Second (for the world’s being given in common), but set that aside as a quibble. The real problem is that though he himself brings up God’s bequeathal of Canaan to Israel (the sons of Abraham), he doesn’t see–or show any signs of seeing–that that bequeathal is a serious problem for his theory.
Never mind that the world was given in common to the sons of Adam and Noah making due allowance for Adam’s or Noah’s (or any other owner’s) special bequeathals to others–a big complication. The point is, in the case of Canaan, it seems that the same God who gave the world in common to mankind decided, capriciously, that a large part of the world was not to be given in common, but given in exclusion. In other words, God just flatly seems to violate the Law of Nature here.
This isn’t just a threat to Locke’s theory of property; it’s a threat to his critique of Filmer (and much else). Locke’s critique of Filmer presupposes a “reasonable” God. But a Law of Nature-violating God isn’t reasonable. And Locke doesn’t seem to know what to do with him. But he’s got to do something, or else there’s a gigantic piece of ad hoc-ery at the center of his theory: God gave the world to mankind in common, except for when he didn’t. (I regard Locke’s scripture commentary as an intrinsic part of his theory. It may not be a part of a Lockean theory, but it’s certainly part of Locke’s.)
One way of saving God from having made an exception to the rules is to insist that there never was a divinely sanctioned rule in the first place. Given how much of Locke’s defense of that rule turns on God’s reasonability, he’s in a jam here. A reasonable God might have given the world in common to mankind, but this God not only didn’t quite do that, he doesn’t seem quite reasonable–so that it’s reasonable to infer that he might not have given the world in common to mankind. Locke cites no convincing scriptural evidence for “God gave the world in common.” There are ad hoc bits of Scripture followed by inferences from what a reasonable Lockean God could be presumed to do.
I have a couple of different hunches for explaining what Locke was up to, none of them entirely borne out or satisfactory.
(1) Locke as divine command imperialist. One is that what Locke wants to say is that the Israelites were given Canaan to rule, not to own, because the Canaanites, being idolaters, were fair game for divinely-sanctioned holy war. In that case, the theory of conquest outlined in Second Treatise, ch. 16 applies, and the Israelites can legitimately come to own parts of Canaan incidental to justly conquering it. In this case, however, we’d have to conclude that Locke’s theory is a problematic mixture of liberalism and outright imperialism.
(2) Locke as covert atheist. Another possibility is quasi-Straussian (a la Strauss’s “Persecution and the Art of Writing”): Locke covertly wants to indict God of unjust conquest, but can’t say that out loud. So he lays out a theory that, if applied consistently, would indict God of injustice, bringing up the conquest of Canaan to alert the reader to the possibility of inconsistency, but staying mum about the whole thing, in the hopes that the reader will draw the heretical inferences on his own.
(3) Locke as hapless agnostic. Another possibility takes its cue from Locke’s frequent appeals to the story of Jeptha and the Ammonites. Here Locke seems to be an agnostic as to which side was right, and more or less claims that the answer lies with God.
Maybe what he says about Jeptha and the Ammonites can be generalized to the entire Israelite conquest of the Promised Land: if you’re a believing Christian who believes in a just God, and believes in the historicity of the Hebrew Bible, you have to believe that if God commanded the Israelites to conquer the Canaanites, his doing so was just. But it’s not fully clear that he did: given the problematic nature of the relationship between Christianity to Judaism (and the New Testament to the Old), it’s not clear how to construe what appear to be God’s commandments to the Israelites. So the proper response is to bracket or avoid this part of the Hebrew Bible and focus attention elsewhere, trusting God to sort it all out in the end. This is a compromise between the other two readings.
All three hunches have a basis in the text. The second and third are unsatisfying. The first is too radical to toss off without a better argument than I so far have.
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Having re-read the Second Treatise, I’m convinced that Locke is committed to a sort of hybrid form of (1) and (3) above, perhaps arranged in lexical order, so that (1) takes precedence to (3), but (3) kicks in where the resources of (1) run out. Anachronistically referring to the non-Israelite inhabitants of ancient Palestine as “Palestinians,” I take this to be Locke’s view:
The Israelites were justified in going to war against the (ancient) “Palestinians” because God commanded it. God was justified in commanding war against the Palestinians because of their idolatry. In other words, the war against the Palestinians was a divinely sanctioned just war.
In a just war, the conqueror acquires rights to kill combatants and to rule, but not rights to ownership of previously-owned property (even if owned by combatants). At best, he has the right to expropriate the conquered people exclusively to compensate himself for losses incurred through war. For reasons I don’t quite understand, Locke is convinced that this compensation will not amount to all that much (ST 184).
In short, the Israelites had the right to go to war against the Palestinians, kill Palestinian combatants, get compensated for their losses, and rule Palestine. But since they had no right to own the land (or, I assume, water) that the Palestinians owned, there is no conflict here with Locke’s theory of property. God gave the world in common to all, including both the Israelites and the Palestinians. Palestinian ownership in Palestine was consistent with this, and remained so after the Israelite conquest.
To the extent that the Israelites came to acquire land in Palestine, they could in principle have done so so consistently with Locke’s strictures. Locke repeatedly asserts that in antiquity (relative to the seventeenth century), population and ownership were sparse relative to available resources. That was clearly true (for Locke) in the Palestinian case. So assuming that (or to the extent that) the Palestinians had themselves met Lockean strictures on appropriation, they would have been obliged to leave “enough and as good” for the incoming Israelites to appropriate. Hence the war didn’t confer ownership to Palestinian-owned land; it conferred the equivalent of an “entry visa” into a Palestine with closed borders, open borders being a necessary condition of ruling Palestine and appropriating any unowned land there (where “unowned” means: land that literally empty or, land that was claimed as property but failed to satisfy Lockean strictures).
It’s unclear how long the Israelite occupation was supposed to last. Of course, if the Canaanites consented to it, it could have lasted forever. If they didn’t consent to it, it couldn’t last all that long.
This is where I think Locke invokes the story of Jeptha and the Ammonites as a hedge (and where element [3] kicks in). Even if we grant that the Israelite conquest was justified ab initio, that justification was bound (on Locke’s account of conquest) to run out after awhile (ST 189). Locke’s interpretation of the Jeptha story is that it depicts normative indeterminacy with respect to rights in a context of warfare: no human judge can decide which of the two parties to the conflict, Jeptha or the Ammonites, was right (ST, 21, 176). I think the point generalizes beyond Jeptha’s predicament to the whole of the Israelite conquest of Palestine. The Israelite conquest may have been justified ab initio, but a certain point, absent Palestinian consent to Israelite rule, the justification would have run out, at which point, by Locke’s theory of resistance to tyranny, the Palestinians may well have had the right to resist the Israelites by force.
The bottom line here is that Locke’s theory of initial appropriation turns out to be internally consistent. He says that the world was given to all of mankind in common. God’s gift of Palestine to the Israelites seems to contradict that, but since it’s a gift of rule rather than ownership–and Locke insists on the rule/ownership distinction throughout both Treatises–there is no outright contradiction.
The problem is that Locke purchases internal consistency at the price of interpretive tendentiousness and implausibility: first he has to impose the rule/ownership distinction on the Hebrew Bible; then he has to cherry pick the text of the Hebrew Bible itself to make it fit his theory (ignoring or minimizing texts that don’t fit his interpretation); and then he has to cherry pick the claims of the 15-16th century travelogues he consults (e.g., Terry’s Voyage to East India, Garcilaso de le Vega’s Historia de las Incas), interpreting them as though they described a New World version of his theory.
I think these tensions in Locke prefigure and explain analogous tensions in contemporary liberalism and libertarianism.
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The plot thickens. There turns out to be some evidence for reading (2) above, Locke as covert atheist, as long as we allow for the possibility that Locke’s atheism is covert even to Locke himself (or at least unintended by him). The evidence comes from Locke’s discussion of idolatry in the Letter Concerning Toleration (pp. 42-45 in the Hackett edition, about 48 paragraphs in).
Locke divides his discussion into two parts. The first part argues that idolatry ought to be allowed and tolerated within a just commonwealth, implying that it would be unjust to go to war against idolaters simply for their idolatry, or to try to convert them by the sword. In this section, Locke carefully avoids passing judgment on events described in the Hebrew Bible, choosing somewhat thought-experimental examples drawn from the New World, intended to prove that Christians ought not to persecute Native American idolaters. He then concludes that what is true of America is true of Europe.
But presumably what is true of Europe is true of the ancient Near East as well. So the implications of Locke’s reasoning are unavoidably atheist, at least if we assume God’s justice: the Israelite war against Canaanite/Amakelite idolatry was unjust, and since God commanded it, God’s commands were unjust. Since no just God could make unjust commands (especially of this nature), we can legitimately infer that no just God exists, i.e., atheism.
The second part of Locke’s discussion answers the objection that since idolatry is a sin, it ought not to be tolerated. And Exhibit A for this argument is the Israelite invasion of Canaan, which was justified by way of God’s hostility to idolatry.
I won’t belabor Locke’s arguments here; they’re all ad hoc and fallacious, and they’re all obviously attempts to save the thesis that the Israelite war against the Canaanites was just, at least regarded as a command to the Jews. (His view implies that the same commands would be unjust if made to Christians, an inference he conceals by saying that the same commands never were, and never would be, addressed to Christians.)
For my purposes, what’s problematic about Locke’s discussion in the Letter is that he fails to make the sharp distinction between ownership and political sovereignty that he makes in the Treatises. He just comes out and says, “I confess that the Seven Nations that possessed the land which was promised to the Israelites were utterly to be cut off.” And: “The inhabitants [of Canaan] were also to be driven out [by the Israelites], that the entire possession of the land might be given to the Israelites.” (p. 45 in the Hackett edition, my emphases.)
Put that way, it’s a major puzzle how God could also have given the world to all of mankind in common, unless giving it to mankind in common is consistent with taking it away at will. Locke tends to wave the whole problem away by saying that God’s special commands to the Jews are instances of positive law with no further implications, since God doesn’t make such commands anymore. But that move doesn’t help, since by Locke’s principles, God’s positive law remains substantively unjust (Locke isn’t a legal positivist: positive law doesn’t become legitimate simply by being positive).
Ultimately, I don’t think Locke has any way out of this jam consistent with the sum total of his philosophical/theological commitments.
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