John Lockes rationale for enclosure makes no mention of rights, but the language of rights might be used to develop a rationale for arguing that efficiency-seeking public policies (such as enclosure) are ethically wrong in certain circumstances. Simply stated, policies are unjustified if the changes they endorse violate or override important rights. Among the rights that might be violated are property or occupancy rights, if enclosure forces people who hold such rights off the land, or subsistence rights, if the effect of enclosure is to put some people in a position where their rights to food and shelter are not met. Yet the ethical principles behind these rights are complex.
A rights-based approach to ethics (sometimes referred to as deontology) proceeds by stipulating or deriving a set of basic rights and duties that agents must perform without regard to the consequences that might arise in any particular case. A rights-based approach to intensification is more concerned as to whether the actions that result in higher food production are consistent with these rights and duties than in their eventual effect on human welfare. Several methods have been put forward for identifying these rights and duties. The German philosopher Immanuel Kant (1724- 1804) developed complex philosophical arguments for a master principle he called the categorical imperative: never act in a way that treats another person solely as a means to an end. For a Kantian, rights and duties can be traced back to this principle, which tells us always to respect other peoples capacity for freely choosing their life plans. The problem that a Kantian would have with Lockes argument for enclosure is that it seems to treat the commoners (whose rights are violated) simply as a means to the larger end of increasing food production.
Kants deontology came at the end of a longer tradition of natural law theory, which held that the basic rights and duties forming the main content of the (ideal) moral law are evident to any rational person, and have hence invested great effort into rational argument for certain approaches to the configuration of rights. Kant argued that every human being wants to be treated as a free, autonomous agent, and that consistency requires people to treat others in the same way. For other philosophers, going back to Thomas Hobbes (1588-1679), rationality was understood simply as enlightened self-interest. The purpose of rights is to protect peoples ability to act on their own enlightened self-interest. Hobbes believed that any rational person would agree to live in accordance with certain rights and duties, if only they could have a reliable expectation that everyone else would do the same. This approach is sometimes characterized as contractualist in light of the way that rights and duties are described as being grounded in an implicit agreement (or social contract) among all members of society.
While a Kantian might argue that enclosure treated commoners as a mere means to a larger social goal, a contractualist might say that enclosure violated the social contract. In either case, the problem with enclosure from a rights-based perspective was that commoners had a right to use these lands. As such, any plan to exclude them from the land could not be justified unless it included some provision for obtaining their agreement. This would require involvement of the commoners at some stage of the enclosure process, and their involvement would need to be such that each rights holder had the opportunity to give or withhold their agreement voluntarily to the plan. Perhaps they could be convinced that they would be better off, or perhaps they would be enticed to accede to such use of the land in exchange for compensation. These details might vary considerably on a case-by-case basis, but what is critical from a rights-based perspective is that respect for the individuals affected by enclosure requires that they be accorded a role in the intensification process that is fully consistent with their rights. Either version of rights theory provides a starting-point for questioning whether intensification is good simply because it produces more benefits (in the form of greater food production) than costs (in the form of losses for the minority).
Either approach to rights implies that the exclusion of commoners from decisionmaking is unacceptable, but a Kantian might in addition note that the effect of enclosure was radically to impoverish commoners and their descendants. For a Kantian, such conditions of poverty make it impossible for a person to exercise rational free will; the circumstances of need are so great that people in dire poverty are effectively coerced into enduring humiliation and deprivation. As such, key subsistence rights, including the right to food, become minimal conditions that must be met if all people are to be treated with the moral respect to which they are due. Thus, any situation in which people are so poor that they cannot freely exercise their innately human capacity to choose a life plan involves an ethical wrong. Methods of intensification that place people in such circumstances cannot be endorsed from a rights-based perspective. ·
 Although similar in
important respects, Kantian deontology and Hobbesian contractualism provide
important different rationales for justifying rights. In both versions of rights
theory, the ethical significance of a right resides in the way that it protects
human freedom. For Kantians, an individuals freedom is an expression of
the ability to plan and order ones own thoughts and actions rationally,
while for contractarians freedom means simply that others do not control or
limit ones action. In Kantian philosophies, preserving the entitlements
owed under the system of rights is a form of showing respect for anothers
need to plan and order his or her own life, but rights can also be seen as being
based on the social contract.|