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9 U. Chi. L. Sch. Roundtable 155 (2002)
Locke's Labor Lost

handle is hein.journals/ucroun9 and id is 159 raw text is: LOCKE'S LABOR LOST ADAM MOSSOFFt Few philosophers are as ubiquitous within American politics and law as John Locke. A mere listing of the primary and secondary sources-from the Founding Fathers to today-that explicitly refer to Locke or implicitly invoke his ideas would rival the Encyclopaedia Britannica in length. His labor argument for property, in particular, has been especially influential. The Second Treatise bears the distinction of being the only philosophy text cited on this subject as authoritative precedent by the contemporary Supreme Court.' As exemplified by the repeated references to and quotations from the Second Treatise in the first chapter of the most popular property casebook,2 the imprint of Lockean ideas upon American conceptions of property is striking. Yet all is not well for Locke's theory of property. Despite its omnipresence in the lawyer's understanding of property rights, his theory of property has fallen prey to modem academic critiques. Scholars across the ideological spectrum- from Jeremy Waldron to Robert Nozick-have dissected the core sections in the Second Treatise and have found them wanting. They declare, in short, that Locke's labor argument for property is a lousy justification for property rights. It is my purpose to rebut the charges against Locke's property theory. In so doing, I have divided this Article into two parts: first, I will survey the contem- porary critiques of Locke's theory of property and second, I will discuss Locke's arguments within the context of his own premises and ideas. Accordingly, I hope to offer an interpretation of Locke's property theory that explains what he t John M. Olin Fellow in Law, Northwestern University School of Law; J.D., University of Chi- cago Law School; M.A. (philosophy), Columbia University; B.A. (philosophy), University of Michigan. He is clerking for the Honorable Jacques L. Wiener, Jr., on the Fifth Circuit for the 2002-2003 term. He would like to thank Jeremy Bates, Jeremiah Goulka, Philip Hamburger and Jim Lindgren for their comments on earlier drafts. He also occasionally enjoys a ham sandwich and a glass of tomato juice for lunch. 1. Ruckelsbaus vMonsanto Co., 467 US 986, 1003 (1984) (citing Locke's Second Treatise for the propo- sition that property arises from labour and invention). 2. Jesse Dukeminier & Kames E. Krier, Propery 3, 15-19, 24 (Aspen, 5th ed 2002).

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