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Hume offers his solution in the second of the two famous passages I mentioned. It’s a passage immediately following one about ‘the instability of possession’. We need to put possession on a stable footing, he says. And he continues: This can be done after no other manner, than by a convention enter’d into by all the members of the society to bestow stability on the possession of those external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry.

It has in common with the statist theory that it presents private property as a creation of the general will. 9 What was particularly controversial was his claim that property in land was created unilaterally by individuals tilling and cultivating land—and doing so laboriously, mixing their labour with a portion of the earth itself. It was understood that this was one conception among many, that is, one conception among many others of this bottom-up kind. 12 On the Lockean account, the Europeans found lands that native Americans roamed over and from time to time established fleeting settlements on, but not land which they had cultivated, not land that they had taken into their possession as property by labour, in the sense designated by Locke’s philosophy.

As existing prior to the creation of the state. ’2 Epstein thinks we should reject this top-down view. Property rights are not a gift of the state, he says; they have legal standing quite apart from human rule. To see matters aright, we have to be prepared to turn the tables on the modern state and go back to something like a Lockean account of the constraining force of property. Does it have to be Lockean? I don’t mean that ‘Lockean’ is a bad thing for a conception to be. 3 And Locke’s theory of property has proved attractive to generations since it was published in 1689.

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