John Locke: Freedom,
Property and the Colonial
Project.
Barry Collins
Senior Lecturer,
School of Law, University of East London
b.collins@uel.ac.uk
Essential Reading
C.B. Macpherson, The Political Theory of Possessive Individualism (Oxford University Press,
1964).
B. Parekh, ‘Liberalism and Colonialism: A Critique of Locke and Mill’, in Pieterse and
Parekh (eds), The Decolonization of Imagination: Culture, Knowledge, and Power (Zed Books,
1995).
Extract from Mabo and Ors v Queensland (No 2) (1992) 175 CLR 1. Note the full case
report can be found online at:
http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html
Further Reading on Locke
M.Loughlin, “The Social Contract”, in Sword and Scales: An Examination of the Relationship
between Law and Politics, (Oxford: Hart, 2000)
Full text of Two Treatises on Government
http://www.lonang.com/exlibris/locke/
For many useful links, see the Locke Institute:
http://www.thelockeinstitute.org/
R. S. Woolhouse, Locke's Philosophy of Science and Knowledge (1971);
J. W. Gough, ed., John Locke's Political Philosophy; Eight Essays (2d ed. 1973);
E. Tagart, Locke's Writings and Philosophy Historically Considered (1977);
R. W. Grant, John Locke's Liberalism (1987).
J.W. Yolton, John Locke, Problems and Perspectives (Cambridge: Cambridge University Press,
1969) [currently housed at Docklands LRC]
Further Reading on Locke, Social Contract Theory and Colonialism
B. Arneil, John Locke and America: The Defence of English Colonialism (Oxford University
Press, 1996).
S. Dorsett, ‘Civilisation and Cultivation: Colonial Policy and Indigenous Peoples in
Canada and Australia’ Griffith Law Review (1995) vol.4, no.2, pp. 214-38
Robert Lee Nicholls, ‘Realizing the Social Contract: The Case of Colonialism and
Indigenous Peoples’ Contemporary Political Theory (2005) vol 4, no 2., pp. 42-62
J. Tully “Re-discovering America: the Two treatises and Aboriginal rights” in G. A. J.
Rogers, Locke's Philosophy: Content and Context (Oxford: Clarendon 1996) [currently housed at
Docklands LRC]
Further reading on Mabo (No 2)
Mabo is one of the most important Australian cases of the late twentieth century. There
is accordingly a wealth of written material on the case, addressing its legal, constitutional,
political, social and economic dimensions. It is probably easiest, if you are coming to
Mabo for the first time, to consult some collections of essays or special editions of
journals. These include:
Sydney Law Review, volume 15, number 2 (June 1993). This special edition of an
Australian law journal was republished as: Essays on the Mabo Decision, Sydney: The Law
Book Company Ltd, 1993.
Murray Goot and Tim Rowse (eds), Make a Better Offer: The politics of Mabo, Sydney: Pluto
Press, 1994
For a collection of critical commentary, see M. A. Stephenson and Suri Ratnapala (eds),
Mabo: A Judicial Revolution, St Lucia: University of Queensland Press, 1993.
For some more recent articles which address developments in Australian native title law
post-Mabo consult:
Sean Brennan, ‘Native Title in the High Court a Decade after Mabo’ (2003) 14 Public Law
Review 209
Maureen Teehan, ‘A Hope Disillusioned, an Opportunity Lost? Reflections on
Common Law Native Title and Ten Years of the Native Title Act’ (2003) 27(2) Melbourne
University Law Review 523 [accessible online at:
http://www.austlii.edu.au/au/journals/MULR/2003/19.html ]
Learning Outcomes
After this lecture/seminar, students will
1. Understand the central elements of Locke’s political thought.
2. Understand the centrality of ideas of liberty and property to Locke’s notion of
the social contract.
3. Be able to relate Locke’s ideas to the development of European colonialism and
particularly to the issue of native title in Australia.
John Locke (1632-1704) studied medicine educated at Oxford and in 1660 became a lecturer there
in Greek, rhetoric, and philosophy. In 1666, Through his friendship with the earl of Shaftesbury,
Locke had minor diplomatic and civil posts. In 1675, after Shaftesbury had lost his offices, Locke
left England for France, where he met French leaders in science and philosophy. Returning to
England in 1679, he retired to Oxford, where he stayed until, suspected of radicalism by the
government, he fled to Holland and remained there several years (1683-89). In Holland he
completed the famous Essay Concerning Human Understanding (1690), which was published in
complete form after his return to England at the accession of William and Mary to the English
throne. In the same year he published his Two Treatises on Civil Government; part of this work justifies
the Glorious Revolution of 1688, but much of it was written earlier. His fame increased, and he
became known in England and on the Continent as the leading philosopher of freedom. Locke
summed up the Enlightenment in his belief in the middle class and its right to freedom of
conscience and right to property, in his faith in science, and in his confidence in the goodness of
humanity.
Locke’s Political Attitudes
Locke is most renowned for his political theory. Contradicting Thomas Hobbes, Locke
believed that the original state of nature was happy and characterized by reason and
tolerance. In that state all people were equal and independent, and none had a right to
harm another's "life, health, liberty, or possessions." The state was formed by social
contract because in the state of nature each was his own judge, and there was no
protection against those who lived outside the law of nature. The state should be guided
by natural law.
Rights of property are very important, because each person has a right to the product of
his or her labour. The policy of governmental checks and balances, as delineated by
Dicey in England, Montesquieu in France, and in the Constitution of the United States,
was set down in a certain form by Locke, as was the doctrine that revolution in some
circumstances is not only a right but an obligation. At Shaftesbury's behest, he
contributed to the Fundamental Constitutions for the Carolinas (the colony's proprietors,
however, never implemented the document).
Locke's concept of the social contract is much more palatable than Hobbes' was. Locke
delineates the nature and cause of the social contract, and his concept of a proper
government and the relationship between the government and the people is also more
consistent with social contract theory than that of Hobbes. While Hobbes' monarchy
would work assuming the absolute goodness and reliability of the king, Locke allows for
the shortcomings of human beings in reality, thus his proposal for social government is a
more realistic doctrine.
Ethical Theory
Locke based his ethical theories upon belief in the natural goodness of humanity. The
inevitable pursuit of happiness and pleasure, when conducted rationally, leads to
cooperation, and in the long run private happiness and the general welfare coincide.
Immediate pleasures must give way to a prudent regard for ultimate good, including
reward in the afterlife. He argued for broad religious freedom in three separate essays on
toleration but excepted atheism and Roman Catholicism, which he felt should be
legislated against as inimical to religion and the state. In his essay The Reasonableness of
Christianity (1695), he emphasized the ethical aspect of Christianity against dogma.
Toleration
John Locke's intellectual curiosity and social activism also led him to consider issues of
general public concern in the lively political climate of seventeenth-century England. In a
series of Letters on Toleration, he argued against the exercise of any governmental effort to
promote or to restrict particular religious beliefs and practices. His epistemology is
directly relevant to this issue: since we cannot know perfectly the truth about all
differences of religious opinion, Locke held, there can be no justification for imposing
our own beliefs on others. Thus, although he shared his generation's prejudice against
"enthusiastic" expressions of religious fervour, Locke officially defended a broad
toleration of divergent views.
1. Government
Locke's views on government, as the title will tell, are expressed in his work Two Treatises
of Government. In summary, with this work, Locke defended the proposition that
government rests on popular consent and rebellion is permissible when government
subverts the ends for which it is established (the ends being the protection of life, liberty,
and property).
Locke's First Treatise was a systematic and almost laboured attack (in some detail) on Sir
Robert Filmer (1590-1653), and especially on Patriarcha, a work published in 1680.
Patriarcha was a sustained attack in defense of divine monarchy. It seems that Locke was
not so much interested in Filmer but rather was using him as a stalking horse to attack
the far more powerful political teachings of Thomas Hobbes, the author of Leviathan
(1651).
Locke's Second Treatise is by far the more influential work. In it, he set forth his theory of
natural law and natural right; in it, he shows that there does exist a rational purpose to
government and one need not rely on "myth, mysticism, and mystery." Against anarchy,
Locke saw his job as one who must defend government as an institution. Locke's object
was to insist not only that the public welfare was the test of good government and the
basis for properly imposing obligations on the citizens of a country; but, also, that the
public welfare made government necessary.
Hobbesian Pre-Social Man
In uncivilized times, in times before government, Hobbes asserted there existed
continual war with "every man, against every man." A time of "no arts; no letters; no
society; and which is worst of all, continual fear and danger of violent death; and the life
of man, solitary, poor, nasty, brutish, and short." On this point Locke and Hobbes were
not in agreement. Locke, consistent with his philosophy, viewed man as naturally moral.
The reason man would willingly contract to enter into civil society is not to shake his
brutish state, but rather that he may advance his ends (peace and security) in a more
efficient manner. To achieve his ends man gives up, in favour of the state, a certain
amount of his personal power and freedom.
Lockeian Pre-Social Man
Adopting a general method similar to that of Hobbes, Locke imagined an original state
of nature in which individuals rely upon their own strength, then described our escape
from this primitive state by entering into a social contract under which the state provides
protective services to its citizens. Locke maintained that the original state of nature was
happy and characterized by reason and tolerance. He further maintained that all human
beings, in their natural state, were equal and free to pursue life, health, liberty, and
possessions; and that these were inalienable rights. Pre-social man as a moral being, and
as an individual, contracted out "into civil society by surrendering personal power to the
ruler and magistrates," and did so as "a method of securing natural morality more
efficiently." To Locke, natural justice exists and this is so whether the state exists, or not,
it is just that the state might better guard natural justice.
Government and Civil Society
Although each individual in the state of nature has the right to enforce the natural law in
defence of property interests, the formation of a civil society requires that all individuals
voluntarily surrender this right to the community at large. By declaring and enforcing
fixed rules for conduct-human laws-the commonwealth thus serves as "umpire" in the
adjudication of property disputes among those who choose to be governed in this way.
Securing social order through the formation of any government invariably requires the
direct consent of those who are to be governed. Each and every individual must concur
in the original agreement to form such a government, but it would be enormously
difficult to achieve unanimous consent with respect to the particular laws it promulgates.
So, in practice, Locke supposed that the will expressed by the majority must be accepted
as determinative over the conduct of each individual citizen who consents to be
governed at all. Although he offered several historical examples of just such initial
agreements to form a society, Locke reasonably maintained that this is beside the point.
All people who voluntarily choose to live within a society have implicitly or tacitly
entered into its formative agreement, and thereby consented to submit themselves and
their property to its governance.
The Extent of Government Power
Locke in his works dwelt with and expanded upon the concept of government power: it
is not, nor can it possibly be, absolutely arbitrary over the lives and fortunes of the
people. For it being but the joint power of every member of the society given up to the
legislative assembly, the power vested in the assembly can be no greater than that which
the people had in a state of Nature before they entered into society, and gave it up to the
community. For nobody can transfer, to another, more power than he possesses himself,
and nobody has an absolute arbitrary power over any other, to destroy, or take away, the
life or property of another. Thus, the power of our legislators:
"... is limited to the public good of the society. It is a power that hath no other end but
preservation, and therefore can never have a right to destroy, enslave, or designedly to
impoverish the subjects... To this end it is that men give up all their natural power to the
society they enter into, and the community put the legislative power into such hands as
they think fit, with this trust, that they shall be governed by declared laws, or else their
peace, quiet, and property will still be at the same uncertainty as it was in the state of
Nature." (Second Treatise, Ch. 11.)
The Structure of Government
The structure or form of the government so established is a matter of relatively less
importance, on Locke's view. What matters is that legislative power-the ability to provide
for social order and the common good by setting standing laws over the acquisition,
preservation, and transfer of property-is provided for in ways to which everyone
consents. Because the laws are established and applied equally to all, Locke argued, this is
not merely an exercise in the arbitrary use of power, but an effort to secure the rights of
all more securely than would be possible under the independence and equality of the
state of nature.
Since standing laws continue in force long after they have been established, Locke
pointed out that the legislative body responsible for deciding what the laws should be
need only meet occasionally, but the executive branch of government, responsible for
ensuring that the laws are actually obeyed, must be continuous in its operation within the
society. Locke's presumption is that the legislative function of government will be vested
in a representative assembly, which naturally retains the supreme power over the
commonwealth as a whole: whenever it assembles, the majority of its members speak
jointly for everyone in the society. The executive function, then, is performed by other
persons (magistrates and ministers) whose power to enforce and negotiate is wholly
derived from the legislative. But since the legislature is not perpetually in session,
occasions will sometimes arise for which the standing laws have made no direct
provision, and then the executive will have to exercise its prerogative to deal with the
situation immediately, relying upon its own counsel in the absence of legislative direction.
It is the potential abuse of this prerogative, Locke supposed, that most often threatens
the stability and order of a commonwealth.
Hobbes, by contrast (not surprisingly, given his view of the nature of man), preferred
that there should be one supreme authority, a monarchy. While Hobbes could tolerate
government by legislative assembly alone, as opposed to a monarch, he thought that
power in the assembly should be absolute and not to be shared. Locke's view, more
consistent with the social contract theory, was that there was no need for government to
have great powers, which, in the final analysis, would only be needed to keep people
down; at any rate, Locke recognized the real danger of leaving absolute power to any one
individual, or group of individuals. Locke thought that government's power was best
limited by dividing government up into branches, with each branch having only as much
power as is needed for its proper function.
The Ends of Government
For people to surrender to government their natural rights and to give to government
"absolute arbitrary power" is, indeed, a very dangerous step; but, take it they do, so that
the ends of society might be met. The ends to be met are to better "secure their peace
and quiet" and to see that the "lives, liberties, and fortunes" of all citizens, under stated
rules (law), might be better protected.
"It cannot be supposed that they should intend, had they a power so to do, to give any
one or more an absolute arbitrary power over their persons and estates, and put a force
into the magistrate's hand to execute his unlimited will arbitrarily upon them; this were to
put themselves into a worse condition than the state of Nature, wherein they had a
liberty to defend their right against the injuries of others, and were upon equal terms of
force to maintain it, whether invaded by a single man or many in combination. Whereas
by supposing they have given up themselves to the absolute arbitrary power and will of a
legislator, they have disarmed themselves, and armed him to make a prey of them when
he pleases..." (Locke.)
Revolution
Unlike Hobbes, Locke regarded the social contract as revocable. Any civil government
depends on the consent of those who are governed, which may be withdrawn at any
time. If a government subverts the ends for which it was created then it might be
deposed; indeed, Locke asserts, revolution in some circumstances is not only a right but
an obligation. Thus, Locke came to the conclusion that the "ruling body if it offends
against natural law must be deposed." This was the philosophical stuff which sanctioned
the rebellions of both the American colonialists in 1775, and the French in 1789.
Whether any specific use of executive prerogative amounts to an abuse of power, is a
question that transcends the social contract itself, and can only be judged by a higher
appeal, to the divinely ordained law of nature. Remember that according to Locke all
legitimate political power derives solely from the consent of the governed to entrust their
"lives, liberties, and possessions" to the oversight of the community as a whole, as
expressed in the majority of its legislative body. The commonwealth as a whole, then, is
dissolved (and a new one formed) whenever there is a fundamental change in the
membership of the legislature.
The most likely cause of such a revolution, Locke supposed, would be abuse of power by
the government itself: when the society unduly interferes with the property interests of
the citizens, they are bound to protect themselves by withdrawing their consent. When
great mistakes are made in the governance of a commonwealth, only rebellion holds any
promise of the restoration of fundamental rights. Who is to be the judge of whether or
not this has actually occurred? Only the people can decide, Locke maintained, since the
very existence of the civil order depends upon their consent. On Locke's view, then, the
possibility of revolution is a permanent feature of any properly-formed civil society.
To summarise, Locke’s account of government is a radical one: one that places the
individual at the heart of the political order. Government must be answerable to the
people, and interference with individual freedom must be in accordance with the social
contract. This is a conception of government as self-limiting deeply connected to the
conception of individual freedom. Locke’s conception of limited government is so
resonant with the conception of civil and political rights. This is why Locke’s
impassioned defence of individual freedom lies at the philosophical foundation of
modern human rights.
2. Property
From the outset, Locke openly declared the remarkable theme of his political theory: in
order to preserve the public good, the central function of government must be the
protection of private property. Consider how human social life begins, in a hypothetical
state of nature. Each individual is perfectly equal with every other, and all have the
absolute liberty to act as they will, without interference from any other. What prevents
this natural state from being a violent Hobbesian free-for-all, according to Locke, is that
each individual shares in the use of the faculty of reason, so that the actions of every
human agent-even in the unreconstructed state of nature-are bound by the self-evident
laws of nature.
Understood in this way, the state of nature vests each reasonable individual with an
independent right and responsibility to enforce the natural law by punishing those few
who irrationally choose to violate it. Because all are equal in the state of nature, the
proportional punishment of criminals is a task anyone may undertake. Only in cases
when the action of the offender permits no time for appeal to the common sense,
reason, and will of others, Locke held, does this natural state degenerate into the state of
war of each against all.
Everything changes with the gradual introduction of private property. Originally, Locke
supposed, the earth and everything on it belongs to all of us in common; among
perfectly equal inhabitants, all have the same right to make use of whatever they find and
can use. The only exception to this rule is that each of us has an exclusive right to
her/his own body and its actions. But applying these actions to natural objects by mixing
our labour with them, Locke argued, provides a clear means for appropriating them as an
extension of our own personal property. Since our bodies and their movements are our
own, whenever we use our own effort to improve the natural world the resulting
products belong to us as well.
The same principle of appropriation by the investment of labour can be extended to
control over the surface of the earth as well. Individuals who pour themselves into the
land-improving its productivity by spending their own time and effort on its cultivationacquire a property interest in the result. The ploughed field is worth more than the empty
wasteland precisely because I have invested my labour in ploughing it; so even if the land
was held in common by all, the ploughed field is mine. This personal appropriation of
natural resources can continue indefinitely, Locke held, so long as there is "enough, and
as good" left for others with the gumption to do the same.
Within reasonable limits, then, individuals are free to pursue their own "life, health,
liberty, and possessions." Of course the story gets more complicated with the
introduction of a monetary system that makes it possible to store up value in excess of
what the individual can responsibly enjoy. The fundamental principle still applies: labour
is the ultimate source of all economic value. But the creation of a monetary system
requires an agreement among distinct individuals on the artificial "value" frozen in what
is, in itself, nothing more than a bit of "coloured metal." This need for agreement, in
turn, gives rise to the social order.
Some accuse John Locke of merely defending the wealthy. Locke believes that the
purpose of government is to protect property and that societies were set up to avoid civil
or foreign wars that may occur over the dispute of property. Locke attempts to
rationalize the right of men having "unequal possessions of the earth", but fails because
he does not recognize that unequal ownership of property does not allow for the basis of
his argument that ownership of property is only justified if there is good and enough for
others. Locke believes that at the beginning man lived in common ownership of the
earth. Ownership of anything was the fruit of man's labour. However, when he tries to
use this argument as the foundation of his justification for unequal property he
contradicts himself. Locke argues that man would use the goods of his labour to barter
with others and appropriate different goods. No man was allowed to appropriate more
than he could barter or use. Some goods were worth more than others; for example,
maybe one year there is a shortage of corn but an abundance of mutton, obviously the
corn has more value and the person who grew the corn therefore more wealth. Locke
claims that eventually man agreed to allow a certain metal or jewel common to all, that
was not perishable, serve as money to appropriate goods. Locke states: "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".
Locke's argument would be valid if there was good and enough for others to labour
upon and gain wealth, but since there is not (because of unequal property ownership) he
has merely set up a system in which the government could be overthrown, but wealth
maintained in the same hands. If no man should appropriate more than he can use and
beyond this share is for others, what right does man have to massive property when
others are starving and have none? Locke would probably argue that the fruits of their
labour will grant them property and that they should work harder, but on what property
should they labour upon, if all property has been divided?
The Taxing Power of Government
"It is true governments cannot be supported without great charge, and it is fit every one
who enjoys his share of the protection should pay out of his estate his proportion for the
maintenance of it. But still it must be with his own consent- i.e., the consent of the
majority, giving it either by themselves or their representatives chosen by them; for if any
one shall claim a power to lay and levy taxes on the people by his own authority, and
without such consent of the people, he thereby invades the fundamental law of property,
and subverts the end of government. For what property have I in that which another
may by right take when he pleases to himself?"
For Locke, taxation should be limited to the lowest possible amount. High taxation, for
Locke, impedes individual liberty. Crucially, for taxation to be legitimate, it must be
based on consent (i.e.: it must be derived from the social contract). His attitude to
revolution in particular needs to be considered in this light, as, for Locke, an unjust
system of taxation can violate the contract between government and people. It is worth
recalling that the slogan of the American revolution was “No taxation without
representation.”
3. John Locke and the Colonial Project
In Locke we see the birth of classical liberalism in which society is prior to the state. It is
society that institutes government in the form of a contractual trust whose sovereignty is
revocable if the property rights which serve as a natural social foundation are violated.
Man can only exist in society by virtue of his possessive relation to property (and we say
his because only men could own property until the late 19th century). As long as one’s
natural right to property is not challenged, civil society remains intact and it is the state,
the embodiment of sovereignty which guarantees this protection. This of course begs the
question what of communities in which non-possessive property relations exist? It would
seem that for Locke they are not a society. For example, the settlement of Australia
began on the basis of the non-recognition of Aboriginal title to their land and as such
Aboriginals were perceived as not having a society [see Mabo case study below]
Locke elevated the conception of the relationship between civil society and sovereignty
into a justification for the dispossession of non-European indigenous peoples. Indeed,
for Locke, native Americans, who had not consented to the use of money, and many of
whom did not cultivate land provided Locke with an image of a veritable state of nature.
He wrote: “[t]hus in the beginning all the World was America…”. Locke said that these
indigenous societies lack “any settled fellowship… [or] Solemn Agreement…” among the
members on how to regulate their common interests. Locke is clear therefore that such
associations in the ‘state of nature’ are not instances of the social contract but purely
voluntary arrangements which provide for the pursuit of limited mutual interests.
Locke was not saying that America was unoccupied, on the contrary it was clearly
inhabited and those inhabitants had a title to the use of those things that sustained their
lives. The important point was that they had not consented to the use of money and so
quite clearly had not settled among themselves the agreements which bound civil and
political society (such as laws and the delegation of authority). As a consequence, the
Indians and people like them were not entitled to be regarded as having any claim to
collective sovereignty, but rather possessed only the personal sovereignty over their own
lives that Europeans had renounced long ago in establishing civil and political societies.
Case Study: Mabo (2) and Locke’s Social Contract Theory
Now, we have seen above that Locke played a very practical and personal role in colonial
administration and government (Locke owned shares in the Royal Africa Company, a
company which was involved in the slave trade, and he was also a Secretary of the
Council of Trade and Plantations, which helped formulate colonial policy). We look now
at another colonial forum in which his thinking played a theoretical role – the conquest,
and ongoing dispossession, of the Australian Aborigines. To do this, we look at a
landmark 1992 case in the High Court of Australia where some of Locke’s theories were
successfully challenged - Mabo and Ors v Queensland (No 2) (1992) 175 CLR 1 (or, Mabo
(2)).
Unlike the settlement of other lands, where the British and other colonial powers had
concluded treaties with the resident Indigenous owners, the British claimed possession of
the entirety of the eastern seaboard of Australia without ever seeking the consent of the
Australian Aborigines, who had been in possession of the lands for thousands of years.
Part of the reason for this was the operation of a particular international legal doctrine
called terra nullius. Translated from the Latin, the expression simply means: ‘empty land’
or ‘no man’s [sic] land’. This legal doctrine formed part of the international law of the
time, by which the European powers regulated (amongst themselves) what lands in the
‘New World’ were available for colonisation and whether their laws would govern the
newly acquired territories. Simplifying greatly, if land was terra nullius then the colonial
power could legitimately invade and take possession of the land for its own use. The
invasion of Australia and the dispossession of the Australian Aborigines was falsely
carried out under this ‘legal fiction’ of terra nullius (or, a certain enlarged variant of it), for
although the Australian Aborigines were clearly in occupation of the land when the
British arrived, it was felt that their form of social organisation and land use was, to
borrow an infamous phrase, ‘so low in the scale of social organization’ as not to actually
count! That was, because the Indigenous inhabitants of the land did not measure up to
European notions of agriculture, civilization and land use (think here about the
application of Locke’s theories to this situation) they were treated as if they were simply
not there.
Since colonisation, various Aboriginal groups had sought to challenge this conclusion,
either through political or legal action. Some small advances had been made in different
contexts towards recognising some form of Indigenous title to land, but it was not until
the landmark case of Mabo (2) that the question of Indigenous land justice was squarely
placed in the middle of the Australian legal and political landscape.
The litigation was commenced in 1982 by three men, Eddie Mabo, David Passi and
James Rice, who claimed that (in spite of the assertions of the British Crown, and
subsequent Australian governments) they owned their land on the island of Mer in the
Torres Strait. The islands in the Torres Strait, a stretch of water lying to the north of the
Cape York peninsula (the most north-easterly point of Australia), extend to within five
kilometres of the Papua New Guinea coastline. The government of Queensland (one of
the Australian states, which together make up the federation of Australia) contested the
claim of the three men, and it was not until June 1992 that judgment was finally delivered
by the High Court of Australia in Mabo (2). The High Court decided, by a majority of
6:1, that the claimants did have title to their land on the island of Mer. In doing so, the
High Court directly considered, and rejected, the enlarged legal fiction of terra nullius. In
belatedly recognising the title of the men, the Court established the doctrine of common
law native title in Australian land law.
We will be looking more closely at the case of Mabo (2), and in particular the lead
judgment of Brennan J as it is reproduced in your readings for this week, as an example
of some of Locke’s theories about law, social organisation, agriculture and land use in
action. When you read the case extract, think about how Locke’s theories are implicit in
some of the legal theories and political beliefs of the conquering powers, and also how
they have been used to justify the dispossession of Indigenous people up until this day.