Breaking the Locke

Over on Am Greatness And Am Thinker I’m suddenly reading a lot about Locke. Everybody wants to get away from him, as far as I can tell because he was all about property.
The latest is a piece by Curry, about how our founders actually REJECTED Locke, as encapsulated in the phrase “unalienable rights”. Property is, necessarily, alienable . So see? The founders weren’t the greedy capitalists the Progs are makin’ em out to be!
Amazingly, even the august conservatives who write for those sites seem to be tacitly admitting that property is bad. Property is theft, as Proudhon put it.

I don’t get this.
We naked apes NEED property. We gotta have clothing, on the most basic level. And certain personal tools. I live in the temperate zone but I doubt I could survive one winter night in the woods without clothing and shelter. We need our stuff, we are dependent on our material culture. It’s what makes us human.

We the Rightly-guided should be defending the idea of private property, not trying to slide off into “sure it’s bad but we never really cared about it in the first place.”

We’re positioning ourselves over the Davoiserie oubliette, ready to be chuted down into the “you will own nothing” dungeon.


The problem with property is that generally it’s EARNED not confiscated.


This is a gross mischaracterization of Locke by this Curry fellow. The unalienable right is not the “right” to never alienate, i.e., dispose of, property. The unalienable right is the right to own and hold property! That is the fundamental right on which all other liberties rest. Being able to then sell the property is not alienating the fundamental right that you can own property.

Thanks Hyp for saving me the time of having to read such drivel.


The 5th Amendment sez we can’t be deprived of “life, Liberty or property” without due process of law. But the Dec lists “life, Liberty and the pursuit of happiness” as our unalienable right. Pursuit, what a great choice. “What’s won is done—Joy’s soul lies in the doing!” The chase, the quest.
About property though, of course the lure of being able to own land instead of farming somebody else’s was what brought millions of people here, especially the German-speaking immigrants. Catherine the Great, almost an exact contemporary of George Washington, lured many of them to the Upper Volga with the same promise.
And yet this right, the single-family homestead, is exactly —no, it’s AMONG —the fundamental things the Dems are taking away from us.


And who is it who came up with the RAP? A bunch of English judges who presumably already got theirs. I suspect as it always is with old money that the RAP was invented to harm new money. The lords and such get to keep theirs in perpetuity but the folks who climbed their way out of society’s sewer must vest in 21 years or lose it. Sounds very WEF to me. Delaware has severely neutered the RAP.


Yes, Pa has repealed it, prospectively, of course. But I don’t get your hostility to it; I thought it was intended to foster free alienability of land. Now, as I understand it, you could tie up land in trust in perpetuity.

If I have title to the land, what difference does it make? My rights as a property owner should not be arbitrarily abrogated at the whims of some judge at the behest of some property developer’s lawyers. That’s MY land. If I want it to go to my 7th Generation down the line grandson, then that’s my business and the Court can pound sand. And then you add to that the fact that calculating the traditional RAP is just such nonsense. It should not be that difficult to devise real property in a will/trust. Looks like Black Rock will have to just go find another piece of land to hold as its property in perpetuity. Simply put, the RAP is an aristocracy’s means of keeping long term property ownership out of the hoi poloi’s hands and at this stage of my life I am all about pissing on the aristocracy.


What is RAP? Please don’t use acronyms without defining them or linking to a definition.


Also, you mentioned free alienability. HOw is it upholding free alienability when it explicitly dictates to whom in my family down the family tree I can devise it to? Is it not in actuality a restriction on my ability to determine at what generation in my family a piece of property is devised?

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Sorry John. It’s the Rule Against Perpetuities. This is an old English Property Law rule that basically states you cannot devise real property to someone unless their complete interests in the property vests within 21 years. So let’s say your little farm in Switzerland was something you wanted to give to your grandson through a will. But your daughter/son doesn’t have a son, ergo you have no grandson. Well, if it is possible that your grandson’s interest in the farm will not vest in 21 years from the time of devising, the Court will basically re-work your instrument because it is said to fail the RAP. If you die and you are still without a grandson, it will be impossible for his interest in the real property to vest before 21 years and it fails the RAP.
Never mind that your daughter/son doesn’t want to own the farm or anything like that. And never mind that you are trying your best to respect your daughter’s/son’s wishes while at the same time trying to keep a large parcel in YOUR family. Nope, in the old days Courts did not care about what YOU the property owner wanted. I think it is a BS legal rule and thankfully it is mostly dead in the United STates. The new republic should have NEVER incorporated/adopted English Common Law whole cloth.


OH and one more for Radical Lawyer Alert: I also think eminent domain is BS. If the STate needs to build something that happens to be on my property and I don’t want to sell or donate it to the State, then they need to come up with new plans.


I think of the rule against perpetuities as saying that the longest a piece of land can be held in trust is a life in being (the “cestui que vie”) plus 21 years.
But, the trust is a purely private entity: the settlor can determine to whom it will go when the trust terminates. And, of course, the settlor creates the trust voluntarily to begin with. Nobody HAS to use this vehicle.
In my personal,experience, a trust can enable a family to keep its land, because it will not be taxed in the settlor’s estate, nor the next generation, etc. it can be passed on through generations, when otherwise, the inheritance /estate taxes would probably force a sale. I dunno: seems to me that “perps” as we called the rule in Law school, is our friend.
Unless we win the midterms and 2024, I’m more afraid our govt will just outlaw trusts altogether.


Yeah you have mentioned previously this fear of yours. I would love to read where you are getting that. Not that I don’t believe you–I do!! I just want to see what their plans are I suppose. It sounds to me like they are looking at the trust property the same way they are looking at pre-tax contributions to 401Ks: as untaxed resources that the State needs so they can blow it on crap and cave people for votes. And to hurt/destroy the middle class.

And lastly about the RAP, no family should have to go through such hoops to protect and pass on real property. I should not need a lawyer to say “I want my property in Delaware City to go to my 3rd grandchild not yet born.” I should just be able to make my desires known and that be enough. After all, isn’t it MY property? (At this point I want to divulge that your bringing up taxes is shared concern I have and I just want to attack the RAP on its known failings of dictating how one is to devise property.)


Who’s going to own the property between your death and the devisee’s birth, if you devise it to a grandchild who hasn’t been born by the time you die? And what if a third grandson never IS born? A trust is just a way you CAN accomplish this. And, you can just devise it in your will to “my daughter in trust for her third child”” . Presto, trust-o! But youd wanna have an alternate disposition in case the third kid were never born.
Also a trust did not HAVE to continue for the full life-in-being-plus 21 years; that was the maximum.
As for eminent domain, well, at least our sovereign has to pay us just compensation. My pet peeve with eminent domain is I DONT think “public utilities” -private, profit-making companies—should have the power, AND a captive tribunal who hears any challenges to their exercise of it. Oh AND they have 5he benefit of less onerous taking procedures: a government unit has to pay the full estimate of just compensation into court before they can enter your land. A utility company just has to,post a bond. Oh AND while a govt unit has to show a “public purpose”, a utility company just has to demonstrate that its confiscation serves the “convenience” of the public! Sheesh, can you think of a lower bar?,

If the gas or electric company decides to take a swath across your land, there is really only ONE thing you can do: try to get them to shift elsewhere on your property, or on to another parcel you own. (You probably wouldn’t want to shunt them off onto a neighbor unless the neighbor was anxious to get the compensation). And you’ll hafta lick their …ah, boots, for months to get ‘em to consider that. Oh, I have BEEN there.


Yeah there is a reason it shares these initials: ED. Again, it’s a carry over from the old English law and although we spent 8 years fighting the SOBs we adopted their corrupt, stupid common law. Ugh, sometimes I just want to open hand slap the Founders across the face.

It stays with the estate Hyp. Pure and simple and then the family of the estate hashes it out. Not a court. Not a bunch of lawyers. But the family. There are so many ways this could be dealt with that does not involve outside parties coming into a family and telling them how to dispose of property. Hell, if there is no life in being, it could be treated as intestate property and passed to the next in line. The difficult thing about the RAP was trying to figure out who the life in being was that the time was to measured against. Now, you imagine how troubling that was for law students and then think how troubling that can be for a family without the use of lawyers. Again, a family should NOT have to spend the amount of money they would to beat the RAP just to pass parcels that the family owns.


But they DONT have to, is my point….well, maybe we can discuss this IRL some day.

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Pesonal property is, to borrow a phrase from Dawkins, an extended phenotype just as is a snail’s shell or a beaver’s dam. The technologies involved in expression of these extended phenotypes are coevolved memetic replicators somewhat like gut bacteria and the rest of the human microbiome: Passed from parent to child (vertical transmission) evolving a mutualistic symbiosis since only lineages in which these relationships are sustained and vivifying survive. Hunting dogs come to mind as an emotive connection to these our ancient vivifying “friends”.

Where things go awry is when we start talking about “property” that is so abstracted from the individual organism that it takes on collective aspects. Think about it like this: Imagine a world where individual humans don’t form gangs. I know – I know… but bear with me. There will, from time to time, occur situations in which two individuals come into a dispute. It is unrealistic to posit an individualist human ecology in which it is practical for all such disputes to be resolved without violence.

So, now… here we are at the foundation of property as extended phenotype prior even to contractual agreements – and people are engaged in one on one conflict – frequently to the death of one or both.

This, my friends, is NOT “the war of all against all” unless one posits an individual organism to be an immensely sophisticated civilization comprising mitotic asexual “dividuals” that can act as a clone army with greater coherence than a eusocial insect hive. No, let’s stop right there and talk about The State of Peace vs The State of War as it pertains to the deeper meaning of meotic reproduction: Sex.

Chew on that.


Defining personal property as an extended phenotype is an interesting idea. But what are the practical advantages of viewing property this way? Does this way of thinking have implications for how property ought to be treated by society?

Could you elaborate? I’m not sure I understand what you’re getting at here.


Locke, Rousseau, Hobbes, et al were operating at the dawn of the scientific method when it was easier than it is even today to commit the fallacy of conflating “is” with “ought” or, in modern terms, conflate science with engineering. In part that was because the social sciences were quite primitive (although I hesitate to say even more primitive than are the social sciences today as is apparent from the recently emerging legal prohibitions against using human genome data to study group differences in social outcomes). That said, one wonders what they would have done if they’d been transported in a time machine to attend lectures by W. D. Hamilton, E. O. Wilson, Trivers, Dawkins, etc., and then transported back whence they came. What I’m doing here isn’t about practice, “ought”, engineering, practicality, etc., so much as it is about applying a more sophisticated understanding of human nature to the exegesis of the modern project that lives on in the writings of these Enlightenment philosophers.

But, if I were to take the “leap of faith”, via applied value systems into the quasi-religious realm of engineering it would start with the two dominant value systems

Valuing individual agency and Valuing the collective agency

The former I see as perpetuating and building on sexual reproduction as an evolutionary plateau.

The latter I see as sacrificing sex in order to revisit the value inherent in asexual reproduction as an evolutionary plateau, but perhaps at a higher order of organization such as space habitat “cells” in which humans evolve toward organelles.


Sorry - I find most of what you say to be jaberwalky. Dawkins el al. have had the wrong idea all along. They’re just louder in their professions. We have learned much in “science” and most of it, if viewed through an unjaundiced eye, would obviously point to there being no such things as evolution. There is adaption but no where is there evidence of evolution. Nor is there a logical source for the data absolutely needed for evolution.

Until you can find real simple explanations for these basic questions, much of the rest of your primesis seems hypothetical with no anchor to the real world.