Mr Locke’s enclosure: the uncommon law of property in the Second Treatise

Abstract John Locke, famously, told a property origin story. This article tells a property theory origin story, asking how Locke’s property theory, which omits common rights, emerged from a common law of property that centred them—and showing how this omission influenced the colonial American law that Locke drafted. Locke was silent on or rejected the common law of property, which recognized common rights and defences against privatization of commons through enclosure. Instead, Locke adopted law reform arguments lauding enclosure because it improved waste land. Locke’s property theory therefore attempts to improve the common law of property by orienting it around private rather than common property. He asks a question about the origin of property absent from common law: how do we create private rights to common land? He takes ‘waste’ to have purely negative connotations, avoiding the neutral meanings of that word at common law. And he stipulates that enclosure of English commons requires only tacit consent of commoners, excluding common law defences against enclosure. Locke’s is an equal opportunity enclosure. His spoilage principle and plan to reform Virginia’s land laws sought to benefit the poor by preventing vast enclosures and rural depopulation. However, he theorized a clean chain of title, absent in common law, which could prevent messy disputes over wealthy estates. This article shows the common law background from which Locke departed, thus deepening understanding of both our private property regime, often justified by Locke’s property theory, and a sometimes-overlooked alternative to it, the common law of property.