John Lockes View of Ownership in Context with the Mabo versus Queensland - Book Report/Review Example

John Locke's view of ownership in context with the Mabo v Queensland (1992) In order to understand what would be the decision of Locke if juxtaposed by the case Mabo v Queensland [No 2] (1992) 175 CLR 1, it is necessary to view his opinion starting with justice. According to Ian Harris, Locke's idea of justice simply suggests that the conformity between an action & the rule of propriety should be understood in the sense of 'a right to any thing' (Harris, 2000, p. 49). That means human rights must be restored in a society, and when it comes to property, it can be examined in context with 'abundance'. The more abundant is the property, the more usage of it can be met. However the 'abundance' factor cannot be fulfilled in today's economic conditions. Chapter V of the Second Treatise defines 'property' as land according to Locke and can be examined in two different ways. First, that land, property or external objects that are owned by him and secondly, the land or external objects that were once owned by his forefathers and are used by him. The Mabo v Queensland case belongs to the second category. According to Locke, it is the 'labour' factor that can make a difference in property acquisition. Because the origin of private property is labour, therefore the inheritance of private property should also be determined by examining the 'labour' factor. For Locke, the justification of property is the problem of acquisition which he starts reasoning in the natural sense that God created mankind to utilise property as long as he lives. Almost as common to the traditional natural law analysis of property as the initial assumption of property in common is a notorious difficulty to which that assumption gave rise. Man may be endowed communally, but he must be nourished individually (Anstey, 2003, p. 62). According to the chapter V of the 'Second Treatise' which puts restrictions on the authorised acquisition of property, a man can only possess the right to acquire a property if his own labour is involved in it. In this case the reason for not constituting native title and indigenous land as proper ownership by Locke is clear for the basic perceptions Locke provided with the European political thought. The decision taken by the 6-1 judges in the Mabo v Queensland's case negates what Locke refers the basic rule of property that every man in a society should have as much as he could make use of. Furthermore Locke believes that an equal law or measure of the just price must be followed in accordance with the market situation so that every man must acquire equal share and not by the profit rate so that every man in the society subjects to justice. Example to understand this is the problem of clipped silver coins, he stresses the significance of a fixed equal measure, claiming that 'the Standard once settled by public Authority, the quantity of Silver established under the several denominations should not be altered till there were an absolute necessity shown of such a change'. This presents the picture by Locke's view in which silver quantity indicates the means and measures to Commerce. Now it is the responsibility of the commonwealth to understand and act as a referee of economic transactions by fixing this measure and upholding it impartially. Another side of the same coin to measure Mabo v Queensland's decision is the Locke's statement of justice which is the equal preservation of property so that poverty may be eliminated by placing all human beings under the law of nature. Of course bringing every one under the shelter of equality requires human beings to be independent of one another, thereby securing their reciprocal relationship because it is equally binding upon all human beings. In this light it can be said that the positive laws of a country serve to secure the reciprocal relationship of all of its subjects and among all of its citizens. Therefore the Mabo's decision in this context contradicts Locke's notion that a law is equality to secure human reciprocity. The other part of the perspective which contradicts Mabo's decision is that property remains in acquisition as long as it is laboured. In conditions of abundance, these private acts of appropriation neither harm anyone nor require any consent, since everyone's claim right to make use of the world God gave to us can be met but in case of scarcity, Locke believes these acts implementation would make the situation worst, therefore in that case productive gains would be accomplished by adding value through labour. That indicates that Locke's perception of ownership is nothing but the usage of labour. This when implemented to the Mabo's case reveal that their claims to lands that they did use in the appropriate sense of the term is not true. Locke supports that the invention of money has made the property mobile enough to produce surplus for civil societies, therefore Government could acquire rights over far more than the individual's due share without invading that of his neighbour (A. Pagden 1998, p. 45). In Mabo v Queensland, the concept of terra nullius was overturned by the Australian Land law, however the International law still does not support the rejection of terra nullius. Critics say that the Court distinguished between questions of property rights and the question of sovereignty. With population growth and an increasing scarcity of available land, and thus increasing 'inconveniences', some end up being excluded from their inclusive claim right to property, since with the introduction of money (which Locke claims is consensual) some can trade their surplus for cash and claim rights to their enlarged possessions on the grounds that they are making use of them. Thus, Locke mentions in the Second Treatise, that labour as opposed to hunting or mining must be considered as the Indian and Spanish methods to the only legitimate basis for claiming property (Arneil, 1996, p. 139).. Thus Locke justifies the perspective in which Mabo v Queensland was treated by the individuals (and states) have rights of access to land and natural resources which trump jurisdictional claims over uncultivated territory. Another aspect of Locke's view is that to retain political power the Government must be able to preserve the property in such a manner that it must be equipped to pass laws so that it can settle disputes easily. In this situation the people must be able to preserve themselves and others to fit into the law of Nature (Kelly, 2002). Milirrpum v. Nabalco and the Commonwealth of Australia (1971) Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 which is unofficially remembered as 'Gove land rights case', in December 1968 was leaded by Justice Blackburn. At that time since there was no common law as 'native title', therefore the traditional owners of the Arnhem Land were defeated by the Nabalco Corporation. It was the Mabo case that overturned the law on native title. The judge Blackburn was the first one to initiate the existence of Aboriginal system of law after the Nabalco case. Since then the Aboriginal land rights movement is one of the most significant social and political events to have occurred in Australia over the last twenty years. Any account of contemporary Australia can hardly neglect the movement that has gathered around the claims made by groups of Aborigines to ownership of their ancestral lands, a movement which has become a symbolic rallying point and focus for all the historic grievances of the Australian Aborigines against their white Australian compatriots. Thus, referring to the Law Reform Commission Act (1973), which directed the Commission to enquire 'whether it would be desirable to apply either in whole or in part Aboriginal customary law to Aborigines', many legal bodies have described it as 'one of reflection of the changing legal and governmental attitudes to the recognition of Aboriginal rights in Australia' (Charlesworth, 1984, p. 4). It was the issue of 'Aboriginal gains' in land ownership that began with a severe setback in the courts. In Milirrpum v. Nabalco Pty. Ltd. though the Yolngu people brought suit against the government and a mining company in an attempt to establish ownership of their traditional lands on the Gove Peninsula in north-east Arnhem Land, but according to Justice Blackburn's test for a native title, the main concern was to examine whether the petitioners maintained the same linkages with the same areas of land as their ancestors had (Schiveley, 2000). Therefore upon recognising two facts in the in the Milirrpum v. Nabalco Pty. Ltd. Justice Blackburn enunciated his decision in favour of Nabalco Corporation. The first fact indicated that the Yolngu people did not maintain their ancestral land in the same manner as their intimates used to maintain. This notion goes with Locke's proposition that the ownership of the land can be claimed if it is used and maintained in the same manner that is beneficial to the people to whom it belongs and since Justice Blackburn found out that the land was of no such usage to Yolngu people; he took the decision against them. Secondly, since there was no legal existence of 'native title' in Australia, therefore Yolngu people lost the case. Based on cases from other common law countries, Justice Blackburn held that the common law only recognised individual title to land, precluding the possibility of community title sought by the Yolngu. Finally, the Gore case held that even if native title did exist, it had been extinguished in 1788 with the declaration of British sovereignty over Australia (Schiveley, 2000). Therefore it was proved by the Gore case that native title did not exist in the common law and that any land claims by Aborigines must be brought pursuant to rights conferred by the appropriate legislature. It is also said that Sir Richard Blackburn, upon hearing a challenge by leading members of the Yirrkala community in the Northern Territory that sought to have the court recognise the existence of communal native title to land relied on a Canadian lower court decision in the case of Calder and found against the Aboriginal people, both on issues of facts and law. The Senate since then set up select committees to consider and inquire into specific issues, and other Senate standing committees considered particular indigenous issues that come within their terms of reference of 'native title'. A welcome development has been the establishment of parliamentary joint committees, comprising both senators and members of the House, to deal with particular issues such as native title. If we examine the issue of 'native right' in the light of Locke's perception, it is clear that Locke never favoured commonwealth judgements. Locke's perception of people claiming whose judgments can be treated as identical with each particular member's, retain the ultimate power to judge whether they can justly make an appeal to heaven. Locke's target according to Anstey (2000) is not a tyranny of the majority but a tyrannical government. This is the main reason why we find Locke opposing the judgments of the commonwealth and those of its members to arbitrary power. References Anstey R. Peter, (2003) The Philosophy of John Locke: New Perspectives: Routledge: New York. Arneil Barbara, (1996) John Locke and America: The Defence of English Colonialism: Clarendon Press: Oxford. Charlesworth Maw, (1984) The Aboriginal Land Rights Movement: Hodja Educational Resources: Richmond, Vic. Harris, I. (2000) "Locke on justice", In M.A. Stewart (ed.), English Philosophy in the Age of Locke, Oxford: Clarendon Press, pp. 49-85. Kelly A. Kristin, (2002) "Private Family, Private Individual: John Locke's Distinction between Paternal and Political Power" In: Social Theory and Practice. Volume: 28. Issue: 3. Pagden, A. (1986) The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology, Cambridge: Cambridge University Press, 1st Edition. Schiveley Geoffrey Robert, (2000) "Negotiation and Native Title: Why Common Law Courts Are Not Proper for s Determining Native Land Title Issues" In: Vanderbilt Journal of Transnational Law. Volume: 33. Issue: 2. p: 427 Read More