Locke and the Homogenisation of the Landscape

Abstract

This chapter examines John Locke’s contributions to the property discourse in the context of the first hallmark of property, individuality. A legal geographical analysis of his Two Treatises is employed to show how Locke’s focus on the individual and the labour theory of value required a reductionist understanding of the commons and communal land use. Locke’s influences from improvement philosophy and his role in the colonial administration of North America are also discussed in relation to his understanding of land. The chapter addresses the consequences of perceiving locally developed concepts of common land as empty space or wasteland. Property’s association with individual liberty in Anglo-American law is reinterpreted in light of its reliance on and extraction from complex Indigenous landscapes.

John Locke’s explanation and justification for the acquisition of property is foundational to the common law’s treatment of land, but what is absent is a consideration of landscape, particularly Native American landscapes, in the development of that theory. Locke took as his starting point the concept of self-ownership: we have a property in our own person that belongs to no one and no one has right to it.¹ It follows therefore that the labour of our body and the work of our hands are properly ours. Property is created by both withdrawing land from the commons and adding our labour.² The second part of Locke’s theory is what Jeremy Waldron calls the labour theory of value—a person adds value to nature.³ Without labour, land and other natural resources have no value.⁴ These two elements of Locke’s theory make it clear that land is undistinguished, malleable nature lacking other distinct values (cultural, social and ecological). For Locke, all land is homogenous nature until man creates property by labour, thereby adding value. In making this assumption, Locke ‘devalued actual labour of commoners by asserting common property was the same as uncultivated waste’.⁵

The Lockean notion of acquiring private property therefore relied on a concept of nature that was passive and uniform, yet capable of transformation.⁶ He states:

God gave the world to men in common; but since he gave it them for their benefit, and the greatest conveniences of life they were capable to draw from it, it cannot be supposed he meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational, (and labor was to be his title to it) not to the fancy or covetousness of the quarrelsome and contentious.⁷

Locke was not unfamiliar with the many uses to which land had been put in England. In his Two Treatises, he acknowledged the commons but promoted a more individualistic conception of the right to appropriate, linked to an individual’s ‘self-mastery’—ownership over body and one’s actions.⁸ This is because, when Locke published his Two Treatises at the end of the seventeenth century, the medieval concept of property associated with status and local custom was subsiding, giving way to ideas about contract and capital⁹ and as a result, significant enclosure of land had already begun in order to maximise land’s potential, or ‘improve’ it.¹⁰ The purpose was to stimulate agrarian development, and so land use and ownership were married, reducing the diversity of interests that once characterised the working landscape in the name of expediency. The primary relationship between people and place was now created through agrarian labour, as opposed to the labour of commoners who engaged in open field practices pre-enclosure.¹¹ Locke therefore regarded enclosure practices as essential to the implementation of improvement theory and applied this thinking to the appropriation of common property and exclusion of communal rights in England and the Americas.¹²

Locke was in a unique position to address the acquisition of land in the new English colonies in America. He was appointed secretary to the Lords Proprietors of Carolina in 1668, during which time debates raged as to the efficacy of plantations and their contribution to England’s food security and economy in the aftermath of the Glorious Revolution. Locke was greatly influenced by the leading authorities of the day who favoured plantation agriculture.¹³ The language of improvement thus accompanied the justification for settlement and development of agricultural land in Locke’s work. These early colonies were treated very much as appendages to England: references to socage in the land grants of the New World were derived from the English tenurial system, the law thus making no distinction between heath and prairie.¹⁴ America had been integrated into the unitary space of the British Empire,¹⁵ its land use no longer reflecting the capabilities or limits of its ecosystems and peoples, but the demands of the English economy.

This idea of vacant space was enabled by Locke’s dismissal of Native land use, so ‘primitive’ in impact that nature remained virtually unspoiled in the Americas. Locke never contemplated land uses that did not correspond to legally defined property, as his theory depended on the nature/culture dichotomy of propertied, civilised communities versus uncivilised communities on open land. He thus conflated the commons with open access resources, which meant that Native Americans were ‘disqualified…as proprietors’.¹⁶ There was already precedent for this type of treatment of open land in the form of English enclosure. This practice was extended to the New World and can therefore be applied to Indigenous peoples evicted from their communal territories and homelands.¹⁷

Historically, enclosure, or the gradual ending of open-field farming in England and Wales, was accomplished through the fencing, parcelling and titling of these communal spaces.¹⁸ Displaced commoners were rarely compensated; their villages were dismantled, so they subsequently sought labour in rapidly industrialising urban centres, succumbed to ‘vagrancy’ or were transported to the colonies. As common lands were consolidated for commercial ventures as well as luxury estate parks, the landed class expanded in wealth and power, a reflection of the rise of agrarian and later industrial capitalism.

In delineating property rights, Locke envisaged such common land as waste, disregarding its original meaning. Collectively owned land in the surrounding area beyond local croplands (be it moor, mountain, marsh or forest) was called ‘the waste’ in England, and it was multifunctional: it served as rough pasture for livestock, or a source for firewood or peat for fuel, provided herbs for local medicine, rushes for basketry or thatching, timber for construction and so on.¹⁹ Waste was subject to a plethora of rules and customs governing access to these resources, often locally, regionally or nationally derived given the quality or significance of the resource. Locke dismissed these complex and creative land management practices and uses associated with waste. Waste was redefined as idle land, land in its primitive, uncultivated, underutilised state and the (global) commons. Locke himself describes, ‘land that is left wholly to nature, that has no improvement of pasturage, tillage, or planting, is called, as indeed it is, waste; and we shall find the benefit of it amount to little more than nothing.²⁰

In fact, waste is conflated with common land:

To which let me add, that he who appropriates land to himself by his labor, does not lessen, but increases the common stock of mankind: for the provisions serving to the support of human life, produced by one acre of enclosed and cultivated land, are (to speak much within compass) ten times more than those which are yielded by an acre of land of an equal richness lying waste in common.²¹

Given this background, enclosure is therefore necessary and positive:

And therefore he that encloses land, and has a greater plenty of the conveniences of life from ten acres, than he could have from a hundred left to nature, may truly be said to give ninety acres to mankind: for his labor now supplies him with provisions out of ten acres, which were but the product of a hundred lying in common.²²

The implication is that, God gives man land in common, as uncultivated nature.²³ Superior usage of land is generated when man removes it from the common state through his labour.²⁴ Locke understood that commons were managed and worked by communities and provided the foundations of the peasant economy in England. This included other values, social, cultural and ecological, but Locke would not accord these any priority. Dowling notes that while a Lockean approach to land could conceive of ‘sentimental’ attachments, land’s primary value is its exchange value: the possibility of producing value for use in exchange.²⁵ Locke deemed it naturally unjust for one to amass too much land; thus, the real source of wealth derived from land is the owner’s opportunity to exchange the perishable items land produces for more durable forms of wealth, such as money.²⁶ Where land is located therefore does not matter, once it supplies this value. Such uncultivated and passive nature could be transposed anywhere, even to America, home of Locke’s ‘wild Indian’, and easily recognised as abhorrent to Locke given the squandered potential for generating wealth:

The fruit, or venison, which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life.²⁷

Locke links together in consistently negative contexts the words ‘commons’, ‘waste’, ‘commoner’, ‘Indian’, ‘America’ and ‘poverty’.²⁸ But Allan Greer highlights that the commons might be thought of both as a place—the village pasture—and as a set of access rights, such as grazing; in America, this portion of the commons located in the tillage zone of a given community might be designated the ‘inner commons’, interacting with the outer commons or outer zone beyond the village where local people gathered firewood, wild herbs and berries and other resources.²⁹ Greer notes that this was not the universal commons, but rather territory and resources that belonged to a particular person, lineage or community, roughly analogous to the moors, mountains and forests of Europe: common property, but neither unregulated nor open to everyone.³⁰

Locke’s application of the ‘wild Indian’ stereotype fails to address the reality of Native land use and conceptualisations of property in pre-Columbian America. Native Americans were hunter-gatherers, as well as dedicated farmers living in diverse environments across the continent.³¹ Because land was not a commodity as Locke defined it, but the bulwark of Indian identity, exchanging it for currency was antithetical to their way of life.³² Greer observes that landholding and land interests across pre-Columbian America varied from one environmental setting and subsistence regime to the next, shaped in some areas by legal codes and customs, as well as by the factors cited by Locke: population density, government and commerce.³³

Agriculture in pre-Columbian America was primarily crop-based, and in the literal sense, land was not enclosed because animal husbandry was limited.³⁴ However, land was managed, as individual families or lineages did have particular plots of their own, subject to varying degrees of community control. Within cities lay villages with intensively cultivated fields reflecting a spectrum of interests: they could be owned by particular households, temples, local chiefs or a particular class of urban nobles and worked by the community.³⁵ Hunter-gatherer tenure developed according to function, such as hunting, fishing and berrying, which in turn shaped the way space was understood and defined.³⁶ Various groups lay claim to overlapping areas for distinct foraging purposes, depending on the resource or the ecosystem. The same may be said for shared waterways. It was possible for people of different nations to share hunting grounds; however, outsiders who hunted without authorisation could be subject to violent punitive action.³⁷ This indicates that various Indigenous peoples were not passive actors, but managed and manipulated their environments through a wide variety of land use arrangements (privately or communally owned, collectively managed) subject to a range of use rights.³⁸

The law in colonial America nevertheless relies on the passive, primitive Indian stereotype in relation to land use. It has been suggested that Native Americans willingly sold land, and evidence of market transfers challenges the conquest narrative of the New World, since Europeans bought rather than seized land.³⁹ However, the loss of land through market mechanisms does not mean that legal land transfers were not coercive, given that Native Americans were not recognised as capable of owning the land they were supposed to be freely selling.⁴⁰ Legislation was passed to this effect, relying on ‘benevolent government stewardship’ to facilitate land transfers that ultimately dispossessed Native peoples of their land, though this was deemed impartial where the letter of the law was concerned.⁴¹

As Arneil notes, Locke’s claim that the state of nature could still be found in America was reinforced by his deliberate and repeated use of America and its natives in his property chapter.⁴² Native landscapes thus played an important role in the development of Locke’s theory of property, as their enclosure enabled the ‘property as individual ownership’ model to flourish. Locke removes the locally distinct character of landscapes and highlights instead the distinctiveness of the rational individual in withdrawing land from the homogenous uncivilised wilderness, adding value through labour to create private property. This theory relies on an uncultivated nature that is open access, in order to emphasise the role of the individual, at the expense of landscape.

The notion of a universal commons completely open to all—Locke’s ‘America’—existed mainly in the imperial imagination. To this pre-owned continent came Spanish, English and French colonists, occupying space, appropriating resources, and developing tenure practices to suit their purposes.⁴³ Native peoples were dispossessed in a variety of ways, as settlers claimed land as individual families or as a community sharing resources; these practices excluded Native peoples, changing the landscape and affecting their livelihoods.⁴⁴ John Locke’s misdescription of colonial property formation as the enclosure of a great universal commons served both to erase Native property in land at the outset and associate colonial appropriation with ‘improvement’, the latter to be understood both in its specialised agricultural sense and its more general meaning.⁴⁵ Diverse working Native landscapes became open-access resources, to be absorbed by European settler interests to secure economic development.

Locke’s theories about property facilitated the appropriation and consolidation of land in the New World. As Indigenous legal scholars have observed, abstract private property rights imposed a culturally exclusive vision of land that aligned with post-medieval England, and was completely alien to pre-Columbian America.⁴⁶ This severed the relationship between local Indigenous use of the natural environment and democratic institutions, and the loss of local knowledge and expertise resulted in the absence of Indigenous contributions to the formation of environmentally and socially benign land governance.⁴⁷ The law's spatial severance of North America’s pre-existing ecosystems and societies continues to inform the American legal system and fails to safeguard Indigenous interests today.⁴⁸

As Roxanne Dunbar-Ortiz writes:

… [H]ad North America been a wilderness, undeveloped, without roads, and uncultivated, it might still be so, for the European colonists could not have survived. They appropriated what had already been created by Indigenous civilizations. They stole already cultivated farmland and the corn, vegetables, tobacco, and other crops domesticated over centuries, took control of the deer parks that had been cleared and maintained by Indigenous communities, used existing roads and water routes in order to move armies to conquer, and relied on captured Indigenous people to identify the locations of water, oyster beds, and medicinal herbs.⁴⁹

In this useful catalogue of the various interests and relations Indigenous peoples had developed with land, it is clear why landscapes had to be collapsed in order to recreate property. The interchangeable commons, vacuous space or wilderness, was the raw material to be mixed with labour, the clay of property, and the primitive ‘Indian’, at one with nature, was therefore unpropertised. The common law recognises those who would separate property from ‘the great commons of unowned things’⁵⁰ and Locke’s association of common land with open-access resources, and conflation of waste with idleness, lay the groundwork for advancing an individual’s private property rights in land in Anglo-American land law.