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access to the world and its resources. Having left the world, in effect, as it was before I claimed a part of it, I am neither subjecting you to my will nor denying you an opportunity I enjoyed, and in this way I treat you as an equal.

3. Grotius on Property and Necessity

We can divide Grotius’s account, as Locke’s first, into two components: the ground and the limits of rights in property. The ground on Grotius’s account is consent, either express or tacit. We start26 in a state of common ownership in the limited sense that each of us has a right to the resources of the world and (really the same point) no one has a right to prevent us from using them. We move from this state to a regime of private property by agreement. For Grotius the problem that Locke found with consent—that if it was necessary to secure consent before consuming any resources ‘Man had starved, notwithstanding the Plenty God had given him’— does not arise, for two reasons. The first is that for Grotius the concept of private property is required to do less work than it is on Locke’s account. What it does is explain how I can be wronged by another’s interference with land or a thing though I am not currently in its possession. But it is not (and need not be) invoked when I exercise the right to use the world’s resources prior to the adoption of a regime of private property. In exercising the original use right we have a model for private property, because in, say, consuming something I have excluded others from its use. But we don’t yet have private property. The second reason Locke’s problem is not Grotius’s is that Grotius allows that tacit consent is sufficient to put a regime of private property in place; and, in fact, that is how he believes it arose. Reasoning out from the exclusion implicit in use we came to recognize a right to exclude free of the requirement of actual, present possession.27

While we needn’t think that an explicit, dated agreement lies at the foundation of the regime of private property it doesn’t follow that we have come to adopt it for no particular reason.28 As Grotius tells it, private property makes materially possible a life we want and cannot otherwise have. But in a sense this point is inessential to his account. The theory of property, as Grotius develops it, does not bear the burden of justifying the adoption of private property. What it does rather is explain how it is possible and set the conditions under which it is permissible. Put another way, for Grotius the question whether we ought to adopt private property is a

26I consider how historical this sense of starting is in Section 4.

27See Grotius 1609, 22 and Grotius 1604, 317.

28Perhaps there is a helpful parallel here to Hume’s account of convention: ‘[T]wo men pull the oars of a boat by common convention, for common interest, without any promise or contract; thus gold and silver are made the measures of exchange: Thus speech and words and language are fixed by human convention and agreement.’ Hume 1777, 306. Property, on Hume’s account, is conventional in this sense. See Hume 1739–40c, 484–501 (3.2.2). In his contribution to this volume, Jeremy Waldron sorts accounts of the foundations of private property in a way that suggests that the parallel I propose to draw between Grotius and Hume on this point might be misleading.

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question about the good and the theory of property, strictly speaking, concerns the right but not the good.

This brings us to the second component of Grotius’s account, the limits of property rights. While private property exists as a convention, there are constraints on the forms it may take. Some consist in first-order substantive rules, such as the law against theft. The right of necessity derives from a more abstract, second-order principle that I will call the foundational presumption: ‘[W]e must consider what was the intention of those who introduced private property: which we must suppose to have been, to recede as little as possible from natural equity.’29 Two aspects of the fundamental presumption need to be clarified. First: in what does natural equity consist? On what I believe to be the best interpretation of the text— and, in any case, the view I will defend here—‘natural equity’ refers not to the original use right directly but rather to the equality to which it gave expression. In holding that neither you nor I need the other’s permission to use the world’s resources before the institution of private property, Grotius represents the idea that we enjoy the kind of moral independence from one another that I suggested prompted Winstanley’s challenge. It is from this state that we must suppose that those who introduced private property intended to recede as little as possible.

Second: what is the force of this ‘must’? Grotius answers questions about human institutions by asking what we must suppose of those who introduced them more than once. The modality varies along a continuum. At one end the claim is that certain features of an institution are conceptually necessary elements of it. An example is the presumption that a state cannot recognize what Grotius calls the ‘promiscuous Right of resisting’ because ‘it [the state] cannot otherwise attain its end. If this prohibition does not exist, there is no State, but a multitude with the tie of society.’30 On the other end is the principle that, in the absence of evidence to the contrary, a people ought to be presumed to have retained more rather than less liberty in establishing a state.31 The foundational presumption is, I think, between the two but closer to the first. It is not analytic, but it is more than an interpretive presumption. The claim is that consistency with natural equity so far as is possible is a condition of the acceptability of a regime of private property. Thus the foundational presumption is normative and objective in the sense that it does not depend on facts about what happened in the past—and so, though Grotius introduces it in a way that might be taken to suggest otherwise, it does not depend on there having been a datable event that marked the adoption of private property.32

The idea, then, is that natural equity is a baseline from which only such departures as are necessary are permissible. This is very abstract. It will help to get clear on what’s at stake. The adoption of private property confers on persons the

29 Grotius 1625, Bk. II, ch. 2, para. 6.1. The language here might seem to be at odds with the fact that, as I’ve claimed, for Grotius we needn’t think that the regime of private property was adopted by

an explicit, dated agreement. I address this herein.
30	Grotius 1625, Bk. I, ch. 4, para. 2.1.	31 Grotius 1625, Bk. I, ch. 3, para. 8.1.
32	Indeed, this would also be at odds with his account of our gradual and tacit adoption of the

convention.

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right to exclude others from parts of the world and things in it that they are not using or otherwise possessing. What’s at stake is how this right can be made consistent with our starting point. The foundational presumption directs us to depart from that starting point as little as possible.

So as a first step—we will see a second is necessary—this yields the following principle: the right to exclude may extend only so far as is necessary to realize the ends for the sake of which we adopt private property. This entails the right of necessity because we can achieve the material benefits private ownership makes possible without enjoying a right to exclude that makes into trespasses others’ lifesaving uses of our property.

This is only a first step because the account so far is vulnerable to the problem that whether it yields the results Grotius thinks it does depends on what one thinks the ends for which sake we adopt private property are. The point is especially well made if we consider the account of necessity defended (against Grotius) by Pufendorf.33 On Pufendorf ’s account the right of necessity is a right one has against another that she allow one to use her property, rather than a right directly to the property. The owner’s right to exclude extends farther on Pufendorf ’s account than it does on Grotius’s. But one’s duty to others requires that one not exercise it in certain circumstances. The right extends as far as it does precisely so that one has the opportunity to waive it. Following Aristotle, for Pufendorf one of the ends for which sake we adopt private property is that it provides opportunities for the cultivation of certain virtues (here beneficence). So as I read him, Pufendorf adopts the principle that the right to exclude may extend only so far as is necessary to realize the ends for the sake of which we adopt private property. He has, however, a different list of those ends than does Grotius, a list which yields a stronger right of exclusion.

Grotius did not address this issue. We could essay two sorts of answers on his behalf. The first weighs in on the question what ends ought we to seek to realize through the institution of property and rejects the cultivation of virtue from that list on, say, the grounds that its inclusion would be illiberal. That’s a sound argument, and sufficient to the point. But it is inconsistent with my claim that for Grotius the theory of property explains how and on what conditions we may adopt private property, but does not itself bear the burden of justifying its adoption, and in this sense concerns the right but not the good. The second answer to the challenge posed by Pufendorf ’s view accepts this. The thought is that in setting the boundary of the right to exclude at the point that makes the life-saving trespass a wrong so as to provide for the property owner a virtue-cultivating opportunity to waive that right is to not merely recede from but rather negate natural equity. It is in effect to assign to the property owner qua property owner arbitrary control over the wouldbe trespasser’s life.

So in its more complete exposition, we can say that the fundamental presumption not only entails the principle that the right to exclude may extend only so far as

33 See Pufendorf 1672, Bk. II, ch. 6.

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is necessary to realize the ends for the sake of which we adopt private property but also rules out the pursuit of certain ends. It does so not on the grounds that they are insufficiently valuable but rather on the grounds that they are inconsistent with the formal conception of equality with which the regime of private property must be consistent. So the more complete justification of the right of necessity is that those ends it is permissible to seek to realize through the adoption of private property can be realized without granting to owners a right to exclude that makes into trespasses others’ life-saving uses of their property.

To tie things up to this point: Grotius’s answer to Winstanley’s objection to consent—that one cannot consent to adopting a regime of private property because one cannot consent to an institution of domination—comes in the limits component of his account of property rights. It is that when the institution of private property respects the foundational presumption it makes that institution consistent with our equality in the sense that Winstanley thought made the right to treat the world as a common treasury inalienable.

That is Grotius’s account of the right of necessity. What remains is his account of the duty of repair. Grotius explains it in two ways. First he argues that:

There are some who think . . . that, as the man used his own Right, he is not bound to restitution. But it is more true that this Right was not plenary, but limited by the burthen of restoring what was taken, when the necessity was over: for such a Right suffices to preserve the natural equity of the case against the rigour of ownership.34

This in effect deploys the foundational presumption but runs it in the opposite direction. The structural symmetry of the justification of the right of necessity and this articulation of the justification of the duty of repair might seem in itself to count in the latter’s favour. However it also brings into relief a concern that might be raised about the argument. So articulated, the justification of the duty to repair supposes that in adopting private property we necessarily adopt as a baseline a particular, and particularly exclusionary, version of the rights of ownership. One might object, however, that if private property exists by convention, then no particular version that convention may take can exert the sort of normative force as a baseline as does the state of natural equity.

One answer to this objection is that, as we have seen, Grotius (and others in the tradition in which he wrote, for example Aquinas) holds that while private property exists by convention it is subject to non-conventional constraints. And sometimes he writes as though the default is the adoption of a particular, and particularly exclusionary version of the rights of ownership, for example implying at one point that to be an owner of something is to be able to use it as one chooses.35

The better answer to the concern is to interpret the passage quoted above in light of a justification of the duty of repair Grotius offers in a summary of his account of necessity in a later passage. There he argues: ‘more is not to be taken than it [the necessity] requires; that is, if keeping the thing is sufficient, it is not to be used; if using it is sufficient, it is not to be destroyed; if destroying it is requisite, the price is

34 Grotius 1625, Bk. II, ch. 2, para. 9.

35 Grotius 1625, Bk. II, ch. 7, para. 2.1.