Productive Use in Acquisition, Accession, and Labour Theory


Contemporary American property scholarship is sceptical of Locke’s theory of labour.  Robert Nozick (in Anarchy, State and Utopia (1974)) and Jeremy Waldron (in The Right to Private Property (1986)) are both assumed to have discredited Locke’s conception of labour.  Locke’s theory seems incoherent because it seems to trade inconsistently on both rights-based and utilitarian components.  And contemporary legal scholars are generally uninterested in how law implements moral theories of rights.  In political-philosophy scholarship over the last generation, however, Locke’s theory of labour has been substantially rehabilitated.  A more charitable line of scholarship construes Locke—like many natural-law or –rights thinkers before him—as propounding a rights-based theory justifying consequentialist reasoning to secure rights.  In this scholarship, the moral right to labour seems more sensible because ‘labour’ is justified in relation to the responsibility to produce goods contributing to human self-preservation or –improvement.

This book chapter restates productive labour theory for contemporary legal scholars.  The chapter shows how productive labour theory anticipates and avoids the most common sources of scepticism toward labour theory among contemporary legal scholars.  The chapter also illustrates how productive labour supplies a moral foundation for legal property rights, some focus to those rights, and a substantial amount of flexibility how to qualify such rights.  The chapter illustrates using: the acquisition doctrines for capturing chattels; the tort doctrine regulating disputes in which one appropriator interferes with another’s attempts to capture chattels; and the accession-related fixture and ratione soli rules, both of which take chattels out of the coverage of capture doctrine.