On the face of it, Locke is a powerful ally of the libertarian.

First, he believes, as libertarians today maintain,

that there are certain fundamental individual rights that are so important

that no government, even a representative government,

even a democratically elected government, can override them.

Not only that, he believes that those fundamental rights include

a natural right to life, liberty, and property,

and furthermore he argues that the right to property

is not just the creation of government or of law.

The right to property is a natural right in the sense

that it is prepolitical.

It is a right that attaches to individuals as human beings,

even before government comes on the scene,

even before parliaments and legislatures

enact laws to define rights and to enforce them.

Locke says in order to think about what it means to have a natural right,

we have to imagine the way things are

before government, before law, and that's what Locke means

by the state of nature.

He says the state of nature is a state of liberty.

Human beings are free and equal beings.

There is no natural hierarchy.

It's not the case that some people are born to be kings

and others are born to be serfs.

We are free and equal in the state of nature and yet,

he makes the point that there is a difference between

a state of liberty and a state of license.

And the reason is that even in the state of nature,

there is a kind of law.

It's not the kind of law that legislatures enact.

It's a law of nature. And this law of nature constrains

what we can do even though we are free,

even though we are in the state of nature.

Well what are the constraints?

The only constraint given by the law of nature

is that the rights we have, the natural rights we have

we can't give up nor can we take them

from somebody else.

Under the law of nature, I'm not free to take somebody else's

life or liberty or property, nor am I free to take

my own life or liberty or property.

Even though I am free, I'm not free to violate the law of nature.

I'm not free to take my own life or to sell my self into slavery

or to give to somebody else arbitrary absolute power over me.

So where does this constraint, you may think it's a fairly

minimal constraint, but where does it come from?

Well, Locke tells us where it comes from

and he gives two answers. Here is the first answer.

"For men, being all the workmanship of one omnipotent,

and infinitely wise maker," namely God,

"they are His property, whose workmanship they are,

made to last during His, not one another's, pleasure."

So one answer to the question is why can't I give up

my natural rights to life, liberty, and property is well,

they're not, strictly speaking, yours.

After all, you are the creature of God. God has a bigger property right in us,

a prior property right.

Now, you might say that's an unsatisfying,

unconvincing answer, at least for those

who don't believe in God.

What did Locke have to say to them? Well, here is where Locke appeals

to the idea of reason and this is the idea,

that if we properly reflect on what it means to be free,

we will be led to the conclusion that freedom can't just be a matter

of doing whatever we want.

I think this is what Locke means when he says, "The state of nature

has a law of nature to govern it which obliges everyone: and reason,

which is that law, teaches mankind who will but consult it

that all being equal and independent, no one ought to harm another

in his life, health, liberty, or possessions."

This leads to a puzzling paradoxical feature of Locke's

account of rights.

It's the idea that our natural rights are unalienable.

What does "unalienable" mean? It's not for us to alienate them

or to give them up, to give them away, to trade them away, to sell them.

Consider an airline ticket. Airline tickets are nontransferable.

Or tickets to the Patriots or to the Red Sox.

Nontransferable tickets are unalienable.

I own them in the limited sense that I can use them for myself,

but I can't trade them away. So in one sense, an unalienable right,

a nontransferable right makes something I own less fully mine.

But in another sense of unalienable rights,

especially where we're thinking about life, liberty, and property,

or a right to be unalienable makes it more deeply,

more profoundly mine, and that's Locke's sense

of unalienable.

We see it in the American Declaration of Independence.

Thomas Jefferson drew on this idea of Locke.

Unalienable rights to life, liberty, and as Jefferson amended Locke,

to the pursuit of happiness. Unalienable rights.

Rights that are so essentially mine

that even I can't trade them away or give them up.

So these are the rights we have in the state of nature

before there is any government.

In the case of life and liberty, I can't take my own life.

I can't sell myself into slavery any more than I can take

somebody else's life or take someone else

as a slave by force.

But how does that work in the case of property?

Because it's essential to Locke's case that private property can arise

even before there is any government.

How can there be a right to private property

even before there is any government?

Locke's famous answer comes in Section 27.

"Every man has a property in his own person.

This nobody has any right to but himself."

"The labor of his body and the work of his hands,

we may say, are properly his."

So he moves, as the libertarians later would move,

from the idea that we own ourselves, that we have property in our persons

to the closely connected idea that we own our own labor.

And from that to the further claim that whatever we mix our labor with

that is un-owned becomes our property.

"Whatever he removes out of the state that nature has provided,

and left it in, he has mixed his labor with,

and joined it to something that is his own, and thereby

makes it his property."

Why? Because the labor is the unquestionable property

of the laborer and therefore, no one but the laborer

can have a right to what is joined to or mixed with his labor.

And then he adds this important provision,

"at least where there is enough, and as good left in common for others."

But we not only acquire our property in the fruits of the earth,

in the deer that we hunt, in the fish that we catch

but also if we till and plow and enclose the land and grow potatoes,

we own not only the potatoes but the land, the earth.

"As much land as a man tills, plants, improves, cultivates

and can use the product of, so much is his property.

He by his labor encloses it from the commons.

So the idea that rights are unalienable seems to distance

Locke from the libertarian.

Libertarian wants to say we have an absolute property right

in ourselves and therefore, we can do with ourselves

whatever we want.

Locke is not a sturdy ally for that view.

In fact, he says if you take natural rights seriously,

you'll be led to the idea that there are certain constraints

on what we can do with our natural rights,

constraints given either by God or by reason reflecting

on what it means really to be free, and really to be free

means recognizing that our rights are unalienable.

So here is the difference between Locke and the libertarians.

But when it comes to Locke's account of private property,

he begins to look again like a pretty good ally

because his argument for private property begins

with the idea that we are the proprietors of our own person

and therefore, of our labor, and therefore,

of the fruits of our labor, including not only

the things we gather and hunt in the state of nature

but also we acquire our property right in the land that we enclose

and cultivate and improve.

There are some examples that can bring out the moral intuition

that our labor can take something that is unowned and make it ours,

though sometimes, there are disputes about this.

There is a debate among rich countries and developing countries

about trade-related intellectual property rights.

It came to a head recently over drug patent laws.

Western countries, and especially the United States say,

"We have a big pharmaceutical industry

that develops new drugs.

We want all countries in the world to agree

to respect the patents."

Then, there came along the AIDS crisis in South Africa,

and the American AIDS drugs were hugely expensive,

far more than could be afforded by most Africans.

So the South African government said,

"We are going to begin to buy a generic version of the AIDS

antiretroviral drug at a tiny fraction of the cost

because we can find an Indian manufacturing company

that figures out how the thing is made and produces it,

and for a tiny fraction of the cost, we can save lives

if we don't respect that patent."

And then the American government said,

"No, here is a company that invested research

and created this drug.

You can't just start mass producing these drugs without paying

a licensing fee."

And so there was a dispute and the pharmaceutical company

sued the South African government to try to prevent their buying

the cheap generic, as they saw it, pirated version of an AIDS drug.

And eventually, the pharmaceutical industry gave in and said,

"All right, you can do that."

But this dispute about what the rules of property should be,

of intellectual property of drug patenting, in a way,

is the last frontier of the state of nature because among nations

where there is no uniform law of patent rights and property rights,

it's up for grabs until, by some act of consent,

some international agreement, people enter into some settled rules.

What about Locke's account of private property

and how it can arise before government and before law

comes on the scene? Is it successful?

How many think it's pretty persuasive?

Raise your hand.

How many don't find it persuasive?

All right, let's hear from some critics.

What is wrong with Locke's account of how private property can arise

without consent? Yes?

Yes, I think it justifies European cultural norms as far as

when you look at how Native Americans may not have cultivated American land,

but by their arrival in the Americas, that contributed

to the development of America, which wouldn't have otherwise

necessarily happened then or by that specific group.

So you think that this is a defense, this defense of private property in land...

Yes, because it complicates original acquisition

if you only cite the arrival of foreigners that cultivated the land.

- I see. And what's your name? - Rochelle.

- Rochelle? - Yes.

Rochelle says this account of how property arises

would fit what was going on in North America during the time

of the European settlement.

Do you think, Rochelle, that it's a way of defending

the appropriation of the land?

Indeed, because I mean, he is also justifying

the glorious revolutions.

I don't think it's inconceivable that he is also justifying

colonization as well.

Well, that's an interesting historical suggestion

and I think there is a lot to be said for it.

What do you think of the validity of his argument though?

Because if you are right that this would justify the taking

of land in North America from Native Americans

who didn't enclose it, if it's a good argument,

then Locke's given us a justification for that.

If it's a bad argument, then Locke's given us a mere

rationalization that isn't morally defensible.

- I'm leaning to the second one... - You're leaning toward the second one.

But that's my opinion as well.

All right, well, then, let's hear if there is

a defender of Locke's account of private property,

and it would be interesting if they could address Rochelle's worry

that this is just a way of defending the appropriation

of land by the American colonists from the Native Americans

who didn't enclose it.

Is there someone who will defend Locke on that point?

Are you going to defend Locke?

Like, you're accusing him of justifying the European

basically massacre the Native Americans.

But who says he is defending it?

Maybe the European colonization isn't right.

You know, maybe it's the state of war that he talked about

in his Second Treatise, you know.

So the wars between the Native Americans and the colonists,

the settlers, that might have been a state of war that

we can only emerge from by an agreement or an act of consent

and that's what would have been required fairly to resolve...

Yes, and both sides would have had to agree to it and carry it out