John Locke and the Skate Pirates: Property Rights and Their Limits

An Introduction: The Suburban Pirates

The rabbit looked up from her late afternoon meal to the sight of something bumping along across the usually quiet open field. A small group of humans making their way to the far side, where a large, human-made structure stood. She always avoided the structure, but the adjacent fields and their clover were too good to be missed, the perfect place for a meal. She remembered humans once ran and made a great deal of noise there. With an odd-shaped stick and a large but bad-smelling nut they had chased and made chattering noises at each other. But those days were long gone. Now the ugly structure on the far side was generally quiet and free of noisy humans. 

In seeming surprise, the humans had stopped, the moving mouth they were pushing almost overturning in the process. The humans seemed wary of being observed – was danger nearby? Had some predator seen them? Odd as she couldn't sense any in the area. She sat still, one moment, then two, fully focused – sight, sound, smell. Nothing immediately dangerous. But then, as quickly as they had stopped, the crew again pressed carelessly on, so she turned back to the clover. 

"Yeah, the concrete is still smooth, and it's pretty wide open with high ceilings."

“I think we should try to get some sort of bank-to-wall built today."

“Yeah, that’d be sick – Shhh… what was that?”

“Dude! F**kin’ hang on to it!” 

Bob could make no sense of what he was hearing and seeing. A bunch of what appeared to be “young adults” were pushing a wheelbarrow across the softball field. It was clearly heavy, laden with what looked like several bags of concrete mix, trowels, a garden hose, and, oddly, a couple of skateboards. For reasons he couldn't figure, they didn't want to be observed, as they had stopped moving at the sound of his footsteps. He quietly laughed; they looked like some latter-day pirates searching for a place to bury their treasure. Thinking they looked both too preoccupied and disorganized to be any threat to anyone but themselves, he stood up from tying his shoes and continued with his evening jog. 

Private Property – Intellectual and Legal Foundations 

Within the Western legal tradition, property, and more specifically, private property, has always been limited by the public interest. That is, the broader common welfare always limits private ownership of things (Magna Carta, 1215/2015, Clauses 28, 31, 39, and 52). At the same time, that same legal tradition also recognizes that private property and its protection are consistent with the broader public purpose (Ibid). It makes sense, not only for the individual, but also for society, that people be able to own the fruits of their labor. If I put time and effort into something, it seems reasonable that I have some control over its use. Indeed, why do anything productive or useful if one is not able to benefit in some way from it? 

In the popular sense of justice and law, there is always a line where public necessity exceeds the community benefits of private ownership. That line, however, is not consistent across geography or time. Like the land upon which we all stand, over time the social conventions of the community change; power coalesces and is once again redistributed, social institutions form and eventually dissipate, and technology advances continually. The frontiers of private property and the definition of the public purpose are constantly and continuously renegotiated and in that shift and shuffle – its easy for folks to lose sight of it altogether. 

The political and legal theoretician John Locke is perhaps the most influential in terms of impact upon modern property law. Locke began with the premise of Self-Ownership from Natural Law – the idea that certain rights of the individual stem from God, or the divine, and thus cannot be circumvented by the State (Locke, 1690/2021, chap 5). The reader might recognize this idea from the statement that opens the U.S. Declaration of Independence – “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights…”(The Declaration of Independence, 1776).  

Locke’s argument goes like this: People own themselves. People, through their work, interact with and improve upon the natural world. (The branch becomes an arrow, clay becomes brick, etc.) The improvements made to nature are an extension of the human effort. Thus, in the same manner that people have a say over themselves, so should they have some say over how these improvements are used. 

In Locke’s presentation, those who hoard or allow items to spoil do not hold a valid property claim. Similarly, using natural resources beyond one's capacity for use is also not valid (Locke, 1690/2021, Chap 5). For example, a person cannot block out the sun for everybody so that they might have some shade. Or cut down all the trees so that they might have a better view. Thus, those who are holding physical resources without using them ought to sell them, or allow them to be used fruitfully.  

Interlude 1: Construction

From a shaded corner of his building, he could see and hear them, the skate pirates.  

“F*&k – this place is disgusting. Needles and garbage everywhere.” 

"Yeah, well, if it weren't, it'd be a bust for sure. It'll clean up. Grab the broom we hid over there last time."

"It looks like the last pour has cured up nicely – nobody's messed with it. With today's work, we should have something skateable here." 

A strange bunch, he thought. They’d cleaned up and even repaired some of the filthiest parts of this wreck of a building. It seemed to him that they wanted to turn it into some sort of skateboard track – whatever. Still, they kept coming back, and it was no concern of his as they kept themselves to the lower floor of the building. He had much bigger problems than a bunch of kids and their skateboards. Trying to stay alive in an abandoned building is no laughing matter. 

The Public Interest

Current U.S. law and court rulings largely follow from the arguments discussed above. The limits of private property are clearly observed in the legal history of zoning and the principle of eminent domain. 

Eminent domain is the legal principle that allows for the public taking of private property in the public interest. Established in U.S. law by the 5^th amendment to the Constitution, eminent domain allows Federal, State, and Municipal governments, through an established process and with just compensation, to take private property and redirect it in the public interest. The process follows established legal rulings and generally involves a sub-process of condemnation. Condemnation of property occurs when the current use of the property leads to outcomes that are contrary to the apparent public interest. The process typically involves public hearings and public involvement to democratically establish the public interest. Just compensation follows condemnation. Generally, just compensation requires the government to pay the owner an amount equivalent to the ‘fair market value’ of the property. Determining 'fair market value' often involves negotiation and frequently, the testimony of multiple experts in valuation. 

The allowable scope of eminent domain and its associated processes demonstrate all the hallmarks of Locke’s foundational philosophy outlined earlier. Namely, that the natural world should be used to the benefit of humanity, that the individual has a valid claim to their creation and to the purchasing power of their creations, but that the claim is limited when it results in others being hurt or harmed. 

Interlude: The DIY

Well, they’re at it again, thought Andrew, wheeling his patrol car through the nearly vacant industrial park. When he had first seen them some months ago, his initial thought had been that he should bust their a$$es. Who were they to think they could turn a building into a skatepark? 

A younger and more zealous version of himself would have done precisely that – probably with a few knocks on the head just to let it sink in. But those days were over. There’d been too much water under the bridge, too many grey decisions, too many sleepless nights wondering if he’d done the right thing. For sure, they were outside the law – Ha! Outlaws! But now he saw them as a curiosity, not a menace. He'd noticed that the area was generally cleaner and that the worst of the crime had largely cleared out. He couldn’t deny that they’d made this part of his patrol less of a pain in the ass – So, let it be, he thought. 

“Hell yeah! The transitions aren’t perfect, but this is so rad – we built this place!” 

“Good thing nobody knows we’re here. Let’s skate.”

The Public Purpose 

So, what's a skater to do? Well, whatever they want, of course. 

However, if they want places to skate and would prefer to be accepted by the broader community, a few things need to happen. First, understand the community's sense of popular justice and public interest. Ask: "Is the work I'm doing making the community better in a manner that most people would accept?" If not, consider whether acceptance is the goal. Perhaps not - there is a certain appeal to being an ‘outlaw,’ and there is a cost. 

If a skater believes that their efforts are "making the space better" for everybody, they should take ownership of that. You probably already have most folks on your side – if they only understand what you’re doing. The more people understand, the more compelled they’ll be to lend their voice in support. Learn about or build friendships with people who have a deep understanding of municipal or state law. Most communities already have established institutions and organizations in place for the redevelopment of property. Redevelopment authorities and so-called “Land Banks” are common examples. Both are common municipal organizations tasked with identifying areas of needed redevelopment, purchasing the associated land for the public benefit, and subsequently reallocating it to the public or private sectors (for-profit and non-profit) consistent with the public benefit. 

Skaters are never the only people aiming to make change – there’s no reason we can’t use organizations and institutions that serve other interests. As we’ve seen - property is a balance and always subject to the broader public interest and public purpose. -- This has been the case for a very long time, and it is unlikely to change anytime soon.  

Interlude: The Wrecking Crew

The rabbit looks up from its morning meal of clover and immediately heads to cover. A large, noisy thing is making its way to the building on the far side of the field. She’d already been shaken up earlier that morning with the arrival of several humans with smaller, but nearly as noisy, devices.

Bob could hear the air hammer from two blocks away. He’d been avoiding the area on his jog the past few days. It was clear that something was up in the industrial park. Workers had been kicking up dust that made it hard to breathe – better to go the other way. 

He pushed aside the flap of the crappy tent. Good thing for that trash find the other day, he thought. He’d pitched the tent over on the far end of the field, up against the backstop of the softball field, after the crews had started coming to the area. Better than nothing, he figured, as the rain from the previous night dripped into his eyes. But worse than what he'd had before, he thought again. Whataya gonna do? He still had bigger concerns. Living in a tent is no joke. 

That evening, the lights of the patrol car reflected off the sharp cut edges of the broken and bent rebar. Word was that a financial consulting firm was moving into the old building. Just what we need, he thought, another group of con-artists in the neighborhood. I guess that's progress, the high-class criminals replacing the low-class criminals. And to be honest, he'd miss seeing the merry band of outlaws playing with their treasure.

From the safety of his hole, the rabbit’s sharp ears overheard the band of pirates somewhere out in the dark.

“Well, I guess we start again somewhere else.”

Author

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