Common ownership of the earth and the social contract: Mathias Risse vs. Hugo Grotius

Drawing heavily on the political theory of Hugo Grotius (1583-1645), Mathias Risse has in a series of recent publications forcefully defended the thesis that human common ownership of the earth is a ground of justice: ‘a reason why claims of justice apply to a certain population’ (2012: 2). ‘The core idea of common ownership’, Risse writes, ‘is that all co-owners ought to have an equal opportunity to satisfy their basic needs to the extent that this turns on obtaining collectively owned resources’ (2008: 288). Collective ownership of the earth grounds pre-institutional rights of necessity and asylum and ditto obligations in the context of climate change, among other claims of justice. Property arrangements not consistent with original ownership rights are deemed unjust (2012: 104). This paper argues that Risse’s reconstruction leaves out, curiously enough, those aspects of Grotius’s theory that are most promising for rethinking the justice of property arrangements today. Risse downplays the conventionalist nature of Grotius’s theory of property (e.g. 2012: 103), perhaps because he prefers to regard original common ownership rights as inalienable. But as I shall show, a social contract is doing the real normative work in Grotius’s theory of property. Limits on private property and privatization are determined by what individuals could rationally have agreed to against the background of common use rights (De Iure Belli, 2.2.6.1). In Risse’s terminology, not original common ownership, but the social contract of property is the main ground of justice for Grotius, establishing rights of necessity (including rights of asylum) and of innocent use (including rights of free passage and of free trade) as well as the impermissibility of privatizing global commons like the sea and the air. My contention is that Grotius’s social contract theory of property is philosophically superior to Risse’s theory of collective ownership of the earth in three respects. First, it offers a tool to critically evaluate the entire system of exclusionary social rules. Second, limits to private property are not separate moral desiderata, but built into the very system of property rules. And third, it permits a wider range of considerations to inform restrictions on private property.