Date Posted: February 2012
Most American property scholars acknowledge that “Of Property,” chapter 5 of John Locke’s Second Treatise of Government, deserves a significant place in the canon of property theory. Virtually all of those scholars, however, understand Of Property in one of several manners that trivialize its argument. This Article draws on scholarship published in the last 20 years in political philosophy and intellectual history, by scholars who understand Locke to propound a theory of labor called here “productive labor theory.” Productive labor theory judges legal and other normative institutions by how effectively the domains of freedom they create in relation to external assets help a wide range of citizens extract from those assets benefits likely to contribute to their rational flourishing.
This Article restates the main tenets of productive labor theory as propounded in that political-philosophy and intellectual-history scholarship. To make productive labor theory concrete, the Article illustrates how it applies to the prima facie case of trespass to land, the remedies for ongoing encroachments, and adverse possession and a few other common defenses to trespass. To situate productive labor theory in relation to legal academics’ impressions, the Article contrasts productive labor theory with act utilitarianism, with the libertarian rendition of Lockean worked out by Robert Nozick in Anarchy, State, and Utopia (1974), and with the labor-desert claims commonly associated with section 27 of the Second Treatise.