존 로크의 자연법 사상에 따른 재산권

Marco Polo’s Estate in Mongol벤자민 터커에서 이어짐.

이 글은 원래 Marco Polo’s Estate in Mongol에 바로 이어져야 할 내용이다. 하지만 게으른 내 천성상 이리저리 미루다가 마지못해 벤자민 터커를 먼저 소개하게 되고 그 다음에 존 로크를 다루게 된다.

재산권의 사상에 대해 이야기할 때 존 로크를 빼놓을 수가 없다. 그의 재산권 사상은 “Second Treatise of Government”의 Chapter V. Of Property에 잘 나와 있다. 아직 영어의 문법이나 표기법이 근대화되기 이전의 영어이기 때문에 다소 읽는 데에 어려움이 있을 수 있겠지만, 의미를 파악하는 데에는 문제가 없다. 옛날식 영어보다는 그의 길게 길게 이어지는 문장이 더 어려울 것이다. 이 텍스트는 구텐베르크 프로젝트( http://www.gutenberg.org/ )에서 찾을 수 있다.

Chapter V. Of Property는 25절에서 51절까지 27개의 절(section)로 이뤄져 있다. 그의 글은 공리라고 생각할 수 있는 명제에서부터 하나하나 돌을 쌓아가는 연역적인 방법을 택하고 있는데 자연법 사상의 철학은 그렇게 계단을 쌓아가는 것이 합당하다.

자연법 사상이라 하지만 수학적인 엄밀함으로 무장되어 있지는 않다. 그가 돈과 금, 은에 대해 가지고 있는 시각은 논쟁의 여지가 많다. 존 로크 역시 그가 발을 딛고 있는 정치적 입장에 맞게 주장을 전개해나가고 있는데, 나는 그의 개별적인 소결론들에 동의하지 않을 수 있지만 그의 사상에는 동감하는 부분이 많다.

개개의 절들은 하나의 생각 덩어리이다. 이 책의 번역본은 이미 나와있는지 모르지만 있더라도 내가 그 책을 사서 읽을 것 같지는 않으므로 영어본을 읽고 대략 요약한다. 나의 요약본은 번역과는 다르며 내 나름대로 각 절의 핵심 아이디어라고 생각하는 부분을 내 마음대로 요약한 것이다.

각 절을 대략 요약하자면:

25절: 인간이 재산에 대한 소유권을 가질 수 있는 근거를 설명하겠다는 취지의 도입부. 기독교의 신이 지구를 아담과 후손들에게 주었다면 한 인간이 다른 인간들을 배제하고 어떤 사물에 대한 재산권을 주장할 수는 없지 않느냐는 질문을 해결하는 과정임을 설명한다.

26절: 기독교의 신이 인간에게 지구를 주었다면 인간의 생존과 편의를 위해 지구를 이용할 근거도 준 것이다.

27절: 공리로서 인간의 몸은 그의 소유이다. 인간의 노동은 그의 소유이다. 인간이 자연상태의 것을 채취하여 자신의 노동을 섞어서 이미 자신의 소유물인 것(자신의 몸)에 섞어 넣으면(먹으면) 그것은 자신의 것이 된다. 이렇게 하여 다른 사람을 배제하고 자신만의 소유권을 가질 수 있는 근거가 된다.

28절: 노동을 섞어서 자연물을 자신의 소유물에 섞는 과정에서 재산권이 발생한다면, 과연 어느 시점에서 재산권이 발생하는 것인가? 자신의 노동을 섞어서 자연물과는 다르게 만드는 시점에서 재산권이 발생한다. 여기에 다른 공동체 멤버들의 동의가 필요한가? 필요하지 않다.

29절: 28절의 부연이다. 만약 공동체 멤버들의 동의가 필수적이라면 (노동을 제공할 수 없는) 갓난아기의 경우 음식물을 먹기 위해 자신의 몸을 잘라서 공동체에 제공해야 할 것이다. 그렇지 않기 위해서는 아버지가 노동을 주입한 물건에 대해 재산권이 생겨야 하고 그 물건을 자식들에게 줄 수 있어야 한다.

30절: Positive law의 입장에 서 있는 사람들에게도 위의 자연법(law of nature)의 원칙은 성립한다.

31절: 이러한 자연법의 원칙이 성립한다면 사람들은 자기가 원하는 만큼 무한정 자기 것으로 만들려고 하지 않겠는가? 그렇지 않다. 기독교의 신이 인간에게 자연을 줄 때 그 자연은 인간이 향유하는(enjoy) 만큼만의 허용한 것이지 자연을 망치거나 파괴하도록(spoil or destroy) 준 것은 아니다. 따라서 인간의 생활에 도움이 되도록 향유하는 한에 있어서만 위의 자연법의 원칙이 성립한다. 지구의 자원은 방대하고 이를 소비하는 인간은 수가 적으므로 위의 원칙을 따른다면 문제가 생길 수 없다. (나의 註: 이 부분은 논쟁이 될 수 있는 부분이며 현재의 실정에 맞는지는 재검토가 필요하다.)

32절: 땅의 소유권에 대한 부분이다. 땅도 동산처럼 인간이 경작하고 작물을 기르고 향상시키는 한에 있어서 그 사람의 재산이 된다. 여기에 공동체 멤버들의 동의가 필요한가? 그렇지 않다. 기독교의 신이 인간에게 삶을 영위하기 위해 동산을 채취하여 자신의 것으로 만들 수 있게 했듯이 같은 목적으로 땅을 이용해서 노동을 제공하여 자신의 것으로 만들 수 있는 곡물을 생산했다면 그 곡물이 부착된 땅도 그의 것이 되어야 한다.

33절: 32절처럼 부동산의 소유권을 인정하면 다른 이들이 부동산이 부족하여 손해를 보지 않을까? 그렇지 않다. 여전히 사람 수에 비해 땅이 풍부하므로 그런 일은 발생하지 않는다. 강에 흐르는 물을 누군가가 떠서 마셨다 한들 그게 다른 이들에게 손해를 끼치지는 않지 않는가? (나의 註: 33절은 현대에 와서는 전혀 맞지 않는 부분이 되고 있다. 부동산이 부족한가는 어떤 관점에서 보느냐에 따라 답이 달라질 수 있는 문제이다. 강물의 경우는 현재 전세계적으로 물 부족 현상이 심화되고 있고 많은 나라에서 강물의 이용을 엄격하게 관리하고 있으므로 한 사람이 물을 떠마시는 것이 다른 사람에게 영향을 미치는 시대가 되었다.)

34절: 33절의 부연.

35절: 33절의 부연.

36절: 땅은 풍부하고 인간이 다른 인간에게 피해를 주지 않고 자기가 사용할 땅만큼을 가질 수 있기에 자연법의 원칙은 유효하다. (나의 註: 역시 인간의 수가 많아진 지금에는 맞지 않는다.)

37절: 인간에게 땅의 소유권을 준다면 광야에서 저절로 자라는 열매보다 10배 많은 열매를 생산할 수 있기 때문에 인간에게 소유권을 줌으로써 다른 인간에게 피해가 가지는 않는다. 만약 어떤 인간이 자신의 땅에서 난 열매를 자기가 다 소비하지도 못하면서 다른 인간에게 주지도 않고 썩혀버린다면 이는 자연법에 위배되는 것이며 처벌받아야 한다.

38절: 어떤 이가 땅을 소유해서 경작하고 열매를 생산했다 하더라도 그 열매를 쌓아두고 썩어가게 한다면 그 땅은 버려진 땅으로 보아야 하며 다른 이가 차지할 수 있다.

39절: 25절에서 38절까지의 서머리와 정리.

40절: 자연상태로 자라는 곡물과 인간이 노동을 들여서 재배한 곡물 사이에는 그 생산량에서 10배 이상의 차이가 날 것이다. 따라서 노동을 생산된 가치의 기본으로 삼는 것은 무리가 없다. (나의 註: 노동과 토지의 관계에서 생산성의 함수를 찾는 아담 스미스와 그 사도들의 이론과는 정면 대치되고 있다.)

41절: 미국의 여러 나라(지금은 주)들이 좋은 예가 된다.

42절: 부연 설명

43절: 부연 설명

44절: 발명과 기술의 발달은 또한 노동의 결과이므로 그것을 개발한 사람의 것이다.

45절: Positive law의 방식으로 땅의 경계를 긋고 소유권을 정하는 방식을 비판함. 그와 같은 일이 돈에 있어서는 발생한 적이 없다. 존 로크가 소유권에 관한 한 자연법 사상을 강력한 지지자임을 알게 하는 단락.

46절: 인간의 삶에 유용한 것은 짧은 시간 안에 썩어없어진다. 금이나 은 같은 것은 인간의 삶에 유용하기보다는 인간들간의 계약에 의해 그 가치를 인정받는 것일 뿐이다. 노동으로 인간의 삶에 유용한 것을 생산하면 소유권을 가지게 된다. 만약 자기가 생산하고도 그걸 이용하지 않아 썩히게 된다면 이는 남의 것을 도둑질한 것과 같다. 자기에게 남는 곡물이 썩어 없어지기 전에 다른 사람의 물건과 교환하여 자신에게 유용한 것으로 바꾼다면 이는 다른 사람에게 해를 끼친 것이 아니다. 이는 곡물을 주고 금속으로 바꾸어 이 금속을 관상용으로 평생 보관하는 것에도 해당된다.

47절: 이에 따라 돈의 이용도 인정된다.

48절: 돈은 물건의 거래의 수단으로 이용되어야지 이를 부의 축적수단으로 쓰면 안 된다. 자신과 가족의 생활에 필요한 이상으로 돈을 축적하는 것은 다른 사람에게 해를 끼치는 것이며 잉여의 돈은 공중에 돌려주어야 한다.

49절: 이는 돈 뿐만 아니라 돈과 같은 속성을 가진 것에도 같이 적용된다.

50절: 돈이나 금, 은 등에 가치를 부여하기로 인간들이 협약을 맺었기 때문에 인간들이 자신의 생활에 필요한 이상의 부를 축적하게 되고 이로 인해 필요 이상의 많은 땅을 소유하게 되는 것이다. 또한 정부는 이러한 협약을 존중하여 재산법을 만들고 땅의 소유는 positive constitutions(positive law system에서 만들어진 헌법)에 의해 관리되는 것이다.

51절: 따라서 처음에는 재산의 소유권(title)은 노동에서 비롯되었다. 따라서 소유권(title)에 대한 다툼이 있을 이유가 없었다. 권리와 유용성은 같은 것이었다. 자신이 이용할 수 있는 만큼만의 땅에 대한 권리가 있기 때문에 그 이상의 땅을 차지하고 싶은 유혹이 없었다.

 

나의 註 (1): God를 “기독교의 신”이라고 번역한 것은 로크의 저술에서 God가 분명히 기독교의 신이기 때문이며 또한 성경에 나오는 야훼를 모델로 하고 있음이 분명하며 또한 성경에서 묘사되는 야훼가 인간에게 부여한 지구라는 개념을 그의 재산권 사상의 기초로 삼고 있기 때문이다. 나는 보편타당한 신이라는 개념은 구라라고 생각하고 있으며 모든 신은 개별 종교의 문맥(context)에서 각각 다른 개성을 갖춘 독자적인 개체들이라고 본다.

나의 註 (2): positive law는 적절한 번역을 찾지 못해서 영문을 그대로 썼다. Positive law는 문자로 쓰여진 법을 말하는데 보통 Common law나 자연법(law of nature)에 반하는 의미로 쓰인다. 소스: 위키피디아. 존 로크의 저작에서는 자연법에 반하는 법으로 인위적으로 사회적인 합의나 정치적인 판단에 의해 제정된 법을 뜻한다. 그러하므로 문자로 쓰여졌다 하여 “성문법”이라 번역하기에는 무리가 있다.

참고를 위해 원문을 첨부한다.

CHAP. V.

Of PROPERTY.

Sec. 25. Whether we consider natural reason, which tells us, that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence: or revelation, which gives us an account of those grants God made of the world to Adam, and to Noah, and his sons, it is very clear, that God, as king David says, Psal. cxv. 16. has given the earth to the children of men; given it to mankind in common. But this being supposed, it seems to some a very great difficulty, how any one should ever come to have a property in any thing: I will not content myself to answer, that if it be difficult to make out property, upon a supposition that God gave the world to Adam, and his posterity in common, it is impossible that any man, but one universal monarch, should have any property upon a supposition, that God gave the world to Adam, and his heirs in succession, exclusive of all the rest of his posterity. But I shall endeavour to shew, how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners.

Sec. 26. God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The earth, and all that is therein, is given to men for the support and comfort of their being. And tho’ all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. 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.

Sec. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.

Sec. 28. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will any one say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state nature leaves it in, which begins the property; without which the common is of no use. And the taking of this or that part, does not depend on the express consent of all the commoners. Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged in any place, where I have a right to them in common with others, become my property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath
fixed my property in them.

Sec. 29. By making an explicit consent of every commoner, necessary to any one’s appropriating to himself any part of what is given in common, children or servants could not cut the meat, which their father or master had provided for them in common, without assigning to every one his peculiar part. Though the water running in the fountain be every one’s, yet who can doubt, but that in the pitcher is his only who drew it out? His labour hath taken it out of the hands of nature, where it was common, and belonged equally to all her children, and hath thereby appropriated it to himself.

Sec. 30. Thus this law of reason makes the deer that Indian’s who hath killed it; it is allowed to be his goods, who hath bestowed his labour upon it, though before it was the common right of every one. And amongst those who are counted the civilized part of mankind, who have made and multiplied positive laws to determine property, this original law of nature, for the beginning of property, in what was before common, still takes place; and by virtue thereof, what fish any one catches in the ocean, that great and still remaining common of mankind; or what ambergrise any one takes up here, is by the labour that removes it out of that common state nature left it in, made his property, who takes that pains about it. And even amongst us, the hare that any one is hunting, is thought his who pursues her during the chase: for being a beast that is still looked upon as common, and no man’s private possession; whoever has employed so much labour about any of that kind, as to find and pursue her, has thereby removed her from the state of nature, wherein she was common, and hath begun a property.

Sec. 31. It will perhaps be objected to this, that if gathering the acorns, or other fruits of the earth, &c. makes a right to them, then any one may ingross as much as he will. To which I answer, Not so. The same law of nature, that does by this means give us property, does also bound that property too. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it us? To enjoy. As much as any one can make use of to any advantage of life before it spoils, so much he may by his Tabour fix a property in: whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus, considering the plenty of natural provisions there was a long time in the world, and the few spenders; and to how small a part of that provision the industry of one man could extend itself, and ingross it to the prejudice of others; especially keeping within the bounds, set by reason, of what might serve for his use; there could be then little room for quarrels or contentions about property so established.

Sec. 32. But the chief matter of property being now not the fruits of the earth, and the beasts that subsist on it, but the earth itself; as that which takes in and carries with it all the rest; I think it is plain, that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, inclose it from the common. Nor will it invalidate his right, to say every body else has an equal title to it; and therefore he cannot appropriate, he cannot inclose, without the consent of all his fellow-commoners, all mankind. God, when he gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth, i.e. improve it for the benefit of life, and therein lay out something upon it that was his own, his labour. He that in obedience to this command of God, subdued, tilled and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

Sec. 33. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all. No body could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same.

Sec. 34. God gave the world to men in common; but since he gave it them for their benefit, and the greatest conveniencies 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 labour was to be his title to it;) not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement, as was already taken up, needed not complain, ought not to meddle with what was already improved by another’s labour: if he did, it is plain he desired the benefit of another’s pains, which he had no right to, and not the ground which God had given him in commonwith others to labour on, and whereof there was as good left, as that already possessed, and more than he knew what to do with, or his industry could reach to.

Sec. 35. It is true, in land that is common in England, or any other country, where there is plenty of people under government, who have money and commerce, no one can inclose or appropriate any part, without the consent of all his fellow-commoners; because this is left common by compact, i.e. by the law of the land, which is not to be violated. And though it be common, in respect of some men, it is not so to all mankind; but is the joint property of this country, or this parish. Besides, the remainder, after such enclosure, would not be as good to the rest of the commoners, as the whole was when they could all make use of the whole;whereas in the beginning and first peopling of the great common of the world, it was quite otherwise. The law man was under, was rather for appropriating. God commanded, and his wants forced him to labour. That was his property which could not be taken from him where-ever he had fixed it. And hence subduing or cultivating the earth, and having dominion, we see are joined together. The one gave title to the other. So that God, by commanding to subdue, gave authority so far to appropriate: and the condition of human life, which requires labour and materials to work on, necessarily introduces private possessions.

Sec. 36. The measure of property nature has well set by the extent of men’s labour and the conveniencies of life: no man’s labour could subdue, or appropriate all; nor could his enjoyment consume more than a small part; so that it was impossible for any man, this way, to intrench upon the right of another, or acquire to himself a property, to the prejudice of his neighbour, who would still have room for as good, and as large a possession (after the other had taken out his) as before it was appropriated. This measure did confine every man’s possession to a very moderate proportion, and such as he might appropriate to himself, without injury to any body, in the first ages of the world, when men were more in danger to be lost, by wandering from their company, in the then vast wilderness of the earth, than to be straitened for want of room to plant in. And the same measure may be allowed still without prejudice to any body, as full as the world seems: for supposing a man, or family, in the state they were at first peopling of the world by the children of Adam, or Noah; let him plant in some inland, vacant places of America, we shall find that the possessions he could make himself, upon the measures we have given, would not be very large, nor, even to this day, prejudice the rest of mankind, or give them reason to complain, or think themselves injured by this man’s incroachment, though the race of men have now spread themselves to all the corners of the world, and do infinitely exceed the small number was at the beginning. Nay, the extent of ground is of so little value, without labour, that I have heard it affirmed, that in Spain itself a man may be permitted to plough, sow and reap, without being disturbed, upon land he has no other title to, but only his making use of it. But, on the contrary, the inhabitants think themselves beholden to him, who, by his industry on neglected, and consequently waste land, has increased the stock of corn, which they wanted. But be this as it will, which I lay no stress on; this I dare boldly affirm, that the same rule of propriety, (viz.) that every man should have as much as he could make use of, would hold still in the world, without straitening any body; since there is land enough in the world to suffice double the inhabitants, had not the invention of money, and the tacit agreement of men to put a value on it, introduced (by consent) larger possessions, and a right to them; which, how it has done, I shall by and by shew more at large.

Sec. 37. This is certain, that in the beginning, before the desire of having more than man needed had altered the intrinsic value of things, which depends only on their usefulness to the life of man; or had agreed, that a little piece of yellow metal, which would keep without wasting or decay, should be worth a great piece of flesh, or a whole heap of corn; though men had a right to appropriate, by their labour, each one of himself, as much of the things of nature, as he could use: yet this could not be much, nor to the prejudice of others, where the same plenty was still left to those who would use the same industry. To which let me add, that he who appropriates land to himself by his labour, does not lessen, but increase the common stock of mankind: for the provisions serving to the support of human life, produced by one acre of inclosed 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. And therefore he that incloses land, and has a greater plenty of the conveniencies of life from ten acres, than he could have from an hundred left to nature, may truly be said to give ninety acres to mankind: for his labour now supplies him with provisions out of ten acres, which were but the product of an hundred lying in common. I have here rated the improved land very low, in making its product but as ten to one, when it is much nearer an hundred to one: for I ask, whether in the wild woods and uncultivated waste of America, left to nature, without any improvement, tillage or husbandry, a thousand acres yield the needy and wretched inhabitants as many conveniencies of life, as ten acres of equally fertile land do in Devonshire, where they are well cultivated?
Before the appropriation of land, he who gathered as much of the wild fruit, killed, caught, or tamed, as many of the beasts, as he could; he that so imployed his pains about any of the spontaneous products of nature, as any way to alter them from the state which nature put them in, by placing any of his labour on them, did thereby acquire a propriety in them: but if they perished, in his possession, without their due use; if the fruits rotted, or the venison putrified, before he could spend it, he offended against the common law of nature, and was liable to be punished; he invaded his neighbour’s share, for he had no right, farther than his use called for any of them, and they might serve to afford him conveniencies of life.

Sec. 38. The same measures governed the possession of land too: whatsoever he tilled and reaped, laid up and made use of, before it spoiled, that was his peculiar right; whatsoever he enclosed, and could feed, and make use of, the cattle and product was also his. But if either the grass of his enclosure rotted on the ground, or the fruit of his planting perished without gathering, and laying up, this part of the earth, notwithstanding his enclosure, was still to be looked on as waste, and might be the possession of any other. Thus, at the beginning, Cain might take as much ground as he could till, and make it his own land, and yet leave enough to Abel’s sheep to feed on; a few acres would serve for both their possessions. But as families increased, and industry inlarged their stocks, their possessions inlarged with the need of them; but yet it was commonly without any fixed property in the ground they made use of, till they incorporated, settled themselves together, and built cities; and then, by consent, they came in time, to set out the bounds of their distinct territories, and agree on limits between them and their neighbours; and by laws within themselves, settled the properties of those of the same society: for we see, that in that part of the world which was first inhabited, and therefore like to be best peopled, even as low down as Abraham’s time, they wandered with their flocks, and their herds, which was their substance, freely up and down; and this Abraham did, in a country where he was a stranger. Whence it is plain, that at least a great part of the land lay in common; that the inhabitants valued it not, nor claimed property in any more than they made use of. But when there was not room enough in the same place, for their herds to feed together, they by consent, as Abraham and Lot did, Gen. xiii. 5. separated and inlarged their pasture, where it best liked them. And for the same reason Esau went from his father, and his brother, and planted in mount Seir, Gen. xxxvi. 6.

Sec. 39. And thus, without supposing any private dominion, and property in Adam, over all the world, exclusive of all other men, which can no way be proved, nor any one’s property be made out from it; but supposing the world given, as it was, to the children of men in common, we see how labour could make men distinct titles to several parcels of it, for their private uses; wherein there could be no doubt of right, no room for quarrel.

Sec. 40. Nor is it so strange, as perhaps before consideration it may appear, that the property of labour should be able to over-balance the community of land: for it is labour indeed that puts the difference of value on every thing; and let any one consider what the difference is between an acre of land planted with tobacco or sugar, sown with wheat or barley, and an acre of the same land lying in common, without any husbandry upon it, and he will find, that the improvement of labour makes the far greater part of the value. I think it will be but a very modest computation to say, that of the products of the earth useful to the life of man nine tenths are the effects of labour: nay, if we will rightly estimate things as they come to our use, and cast up the several expences about them, what in them is purely owing to nature, and what to labour, we shall find, that in most of them ninety-nine hundredths are wholly to be put on the account of labour.

Sec. 41. There cannot be a clearer demonstration of any thing, than several nations of the Americans are of this, who are rich in land, and poor in all the comforts of life; whom nature having furnished as liberally as any other people, with the materials of plenty, i.e. a fruitful soil, apt to produce in abundance, what might serve for food, raiment, and delight; yet for want of improving it by labour, have not one hundredth part of the conveniencies we enjoy: and a king of a large and fruitful territory there, feeds, lodges, and is clad worse than a day-labourer in England.

Sec. 42. To make this a little clearer, let us but trace some of the ordinary provisions of life, through their several progresses, before they come to our use, and see how much they receive of their value from human industry. Bread, wine and cloth, are things of daily use, and great plenty; yet notwithstanding, acorns, water and leaves, or skins, must be our bread, drink and cloathing, did not labour furnish us with these more useful commodities: for whatever bread is more worth than acorns, wine than water, and cloth or silk, than leaves, skins or moss, that is wholly owing to labour and industry; the one of these being the food and raiment which unassisted nature furnishes us with; the other, provisions which our industry and pains prepare for us, which how much they exceed the other in value, when any one hath computed, he will then see how much labour makes the far greatest part of the value of things we enjoy in this world: and the ground which produces the materials, is scarce to be reckoned in, as any, or at most, but a very small part of it; so little, that even amongst us, land that is left wholly to nature, that hath 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. This shews how much numbers of men are to be preferred to largeness of dominions; and that the increase of lands, and the right employing of them, is the great art of government: and that prince, who shall be so wise and godlike, as by established laws of liberty to secure protection and encouragement to the honest industry of mankind, against the oppression of power and narrowness of party, will quickly be too hard for his neighbours: but this by the by. To return to the argument in hand,

Sec. 43. An acre of land, that bears here twenty bushels of wheat, and another in America, which, with the same husbandry, would do the like, are, without doubt, of the same natural intrinsic value: but yet the benefit mankind receives from the one in a year, is worth 5l. and from the other possibly not worth a penny, if all the profit an Indian received from it were to be valued, and sold here; at least, I may truly say, not one thousandth. It is labour then which puts the greatest part of value upon land, without which it would scarcely be worth any thing: it is to that we owe the greatest part of all its useful products; for all that the straw, bran, bread, of that acre of wheat, is more worth than the product of an acre of as good land, which lies waste, is all the effect of labour: for it is not barely the plough-man’s pains, the reaper’s and thresher’s toil, and the baker’s sweat, is to be counted into the bread we eat; the labour of those who broke the oxen, who digged and wrought the iron and stones, who felled and framed the timber employed about the plough, mill, oven, or any other utensils, which are a vast number, requisite to this corn, from its being feed to be sown to its being made bread, must all be charged on the account of labour, and received as an effect of that: nature and the earth furnished only the almost worthless materials, as in themselves. It would be a strange catalogue of things, that industry provided and made use of, about every loaf of bread, before it came to our use, if we could trace them; iron, wood, leather, bark, timber, stone, bricks, coals, lime, cloth, dying drugs, pitch, tar, masts, ropes, and all the materials made use of in the ship, that brought any of the commodities made use of by any of the workmen, to any part of the work; all which it would be almost impossible, at least too long, to reckon up.

Sec. 44. From all which it is evident, that though the things of nature are given in common, yet man, by being master of himself, and proprietor of his own person, and the actions or labour of it, had still in himself the great foundation of property; and that, which made up the great part of what he applied to the support or comfort of his being, when invention and arts had improved the conveniencies of life, was perfectly his own, and did not belong in common to others.

Sec. 45. Thus labour, in the beginning, gave a right of property, wherever any one was pleased to employ it upon what was common, which remained a long while the far greater part, and is yet more than mankind makes use of. Men, at first, for the most part, contented themselves with what unassisted nature offered to their necessities: and though afterwards, in some parts of the world, (where the increase of people and stock, with the use of money, had made land scarce, and so of some value) the several communities settled the bounds of their distinct territories, and by laws within themselves regulated the properties of the private men of their society, and so, by compact and agreement, settled the property which labour and industry began; and the leagues that have been made between several states and kingdoms, either expresly or tacitly disowning all claim and right to the land in the others possession, have, by common consent, given up their pretences to their natural common right, which originally they had to those countries, and so have, by positive agreement, settled a property amongst themselves, in distinct parts and parcels of the earth; yet there are still great tracts of ground to be found, which (the inhabitants thereof not having joined with the rest of mankind, in the consent of the use of their common money) lie waste, and are more than the people who dwell on it do, or can make use of, and so still lie in common; tho’ this can scarce happen amongst that part of mankind that have consented to the use of money.

Sec. 46. The greatest part of things really useful to the life of man, and such as the necessity of subsisting made the first commoners of the world look after, as it cloth the Americans now, are generally things of short duration; such as, if they are not consumed by use, will decay and perish of themselves: gold, silver and diamonds, are things that fancy or agreement hath put the value on, more than real use, and the necessary support of life. Now of those good things which nature hath provided in common, every one had a right (as hath been said) to as much as he could use, and property in all that he could effect with his labour; all that his industry could extend to, to alter from the state nature had put it in, was his. He that gathered a hundred bushels of acorns or apples, had thereby a property in them, they were his goods as soon as gathered. He was only to look, that he used them before they spoiled, else he took more than his share, and robbed others. And indeed it was a foolish thing, as well as dishonest, to hoard up more than he could make use of. If he gave away a part to any body else, so that it perished not uselesly in his possession, these he also made use of. And if he also bartered away plums, that would have rotted in a week, for nuts that would last good for his eating a whole year, he did no injury; he wasted not the common stock; destroyed no part of the portion of goods that belonged to others, so long as nothing perished uselesly in his hands. Again, if he would give his nuts for a piece of metal, pleased with its colour; or exchange his sheep for shells, or wool for a sparkling pebble or a diamond, and keep those by him all his life he invaded not the right of others, he might heap up as much of these durable things as he pleased; the exceeding of the bounds of his just property not lying in the largeness of his possession, but the perishing
of any thing uselesly in it.

Sec. 47. And thus came in the use of money, some lasting thing that men might keep without spoiling, and that by mutual consent men would take in exchange for the truly useful, but perishable supports of life.

Sec. 48. And as different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them: for supposing an island, separate from all possible commerce with the rest of the world, wherein there were but an hundred families, but there were sheep, horses and cows, with other useful animals, wholsome fruits, and land enough for corn for a hundred thousand times as many, but nothing in the island, either because of its commonness, or perishableness, fit to supply the place of money; what reason could any one have there to enlarge his possessions beyond the use of his family, and a plentiful supply to its consumption, either in what their own industry produced, or they could barter for like perishable, useful commodities, with others? Where there is not some thing, both lasting and scarce, and so valuable to be hoarded up, there men will not be apt to enlarge their possessions of land, were it never so rich, never so free for them to take: for I ask, what would a man value ten thousand, or an hundred thousand acres of excellent land, ready cultivated, and well stocked too with cattle, in the middle of the inland parts of America, where he had no hopes of commerce with other parts of the world, to draw money to him by the sale of the product? It would not be worth the enclosing, and we should see him give up again to the wild common of nature, whatever was more than would supply the conveniencies of life to be had there for him and his family.

Sec. 49. Thus in the beginning all the world was America, and more so than that is now; for no such thing as money was any where known. Find out something that hath the use and value of money amongst his neighbours, you shall see the same man will begin presently to enlarge his possessions.

Sec. 50. But since gold and silver, being little useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great part, the measure, it is plain, that men have agreed to a disproportionate and unequal possession of the earth, they having, by a tacit and voluntary consent, found out, a way how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus gold and silver, which may be hoarded up without injury to any one; these metals not spoiling or decaying in the hands of the possessor. This partage of things in an inequality of private possessions, men have made practicable out of the bounds of society, and without compact, only by putting a value on gold and silver, and tacitly agreeing in the use of money: for in governments, the laws regulate the right of property, and the possession of land is determined by positive constitutions.

Sec. 51. And thus, I think, it is very easy to conceive, without any difficulty, how labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded it. So that there could then be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave. Right and conveniency went together; for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of. This left no room for controversy about the title, nor for encroachment on the right of others; what portion a man carved to himself, was easily seen; and it was useless, as well as dishonest, to carve himself too much, or take more than he needed.

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13 thoughts on “존 로크의 자연법 사상에 따른 재산권

  1. iago says:

    It’s times like this that I get to envy your educational background – when you bring economics and law on the same ground. These excerpts are gonna have a very high quotation value for me🙂

  2. spyer007 says:

    자신보다 수가 더 높으면 다 고수죠 ^^
    전 아직까지 사상가들의 책치고 제대로 읽어본 것이 하나도 없어서…사실 읽어도 그 의미를 잘 알기도 어렵구요…

  3. Positive law는 ‘term’으로 실정법(實定法)이라 옮겨지구요 자연법과 실정법의 관계랄까 그런 건 법철학에서 다루죠.

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