Part I: On Property Rights—Subjective and Objective, Human and Natural
A. Private Property, Law, and Human Rights
1. The background of the debate
A couple of weeks ago, in response to an interesting interchange between the Catholic bloggers Pascal-Emmanuel Gobry (or PEG) and Elizabeth Bruenig on the subject of private property, natural rights, and positive law, I weighed in with an essay summarizing the issues at stake and offering a bit of historical perspective from Thomas Aquinas, whose thinking on private property was enormously influential in the catholic tradition. (I deliberately use the small-case “catholic” here, since the teaching of Thomas here is as much the legacy of Protestants as of Roman Catholics.) Mrs. Bruenig had argued that Augustine was a “legal realist” in the sense that he held property rights to be the product of human law, rather than nature (though there are other broader meanings of the term), to which Mr. Gobry replied, more or less: (a) So what? The rest of the tradition is not legal realist on this question; and (b) regardless, this is obviously a bad idea, and leads to totalitarianism. (See the interchange here, here, and here)
In response, accordingly, I sought to clarify the nature of Mr. Gobry’s concerns under (b), since there are certainly valid conservative worries, while disentangling them from his unhelpfully vague notion of the “transcendent dignity” of human nature that “the state is duty-bound to protect”; private property, I pointed out, simply does not seem to fit in with those other fundamental human rights that he sought to appeal to. I made this point by drawing on Aquinas’s helpful discussion of the natural and non-natural features of property right in ST II-II q. 66, thus incidentally undercutting Mr. Gobry’s (a)—if Aquinas argued that private property was determined by human rather than natural law, Mr. Gobry’s list of allies grew thin.
If I had had any doubts whether such a lengthy post had been worth the while, they were soon put to rest, as both Mrs. Bruenig and Mr. Gobry followed up with thoughtful reflections going right to the heart of the matter: what we mean by the language of “rights.” Their perspectives could hardly have been more different. Mrs. Bruenig drew upon the sterling work of Joan Lockwood O’Donovan in tracing a genealogy of “human rights” that set them firmly at odds with Christian orthodoxy, while Mr. Gobry sought to baptize the liberal human rights tradition wholesale as the flowering of Catholic teaching. For Mrs. Bruenig, the modern notion of subjective rights (i.e., rights first and foremost possessed by each individual, from which we derive more generalized moral duties) as opposed to the earlier notion of objective rights (which is to say, rights derived downward as specifications of an objective moral order, God’s right) led irresistibly to an anti-Christian individualism:
“Nowadays, when we talk about property rights, we do so in the way liberal theorists would have us do. We refer to contractarian and individualist terms, we view rights themselves as subjective (that is, tied to the subject, the person, not strictly related to the right use of creation and revealed obligations/duties) and we see the state as existing more or less to harmonize those conflicting rights claims. . . . The result of all this is that the status quo in relation to property — that is, the way property now exists in our collective political imagination, as the claim of an intrinsically valuable right — conflicts essentially with a Christian construal.”
For Mr. Gobry, on the other hand, the rights-language of Enlightenment liberalism is simply the fruition of what the Catholic tradition had always taught about “the intrinsic and transcendent dignity of every single human being” and natural law, so much so that “the concept of universal human rights, as such, from the standpoint of Christian ethics, essentially amounts to ‘2+2=4’.” While camping out on “religious liberty” as the central human right embraced by the modern Catholic Church, he insisted that the Church’s embrace of rights-language was across the board and extended to private property rights.
One could hardly ask for two such starkly contrasting portraits. Nor could one ask for such a delicious irony in the fact that the self-proclaimed “leftist” Mrs. Bruenig took her stand with what is often seen as the reactionary conservatism of the O’Donovans, and with the medieval tradition, while the self-proclaimed “conservative” Mr. Gobry embraced Locke, Rousseau, and all things modern. You would not be amiss to wonder if this tells you a thing or two about so-called “conservatism” nowadays. Needless to say, I find Mr. Gobry’s grand narrative—from Augustine to Locke to the UN—exceedingly dubious as a historical proposition, and find myself much closer to the O’Donovans on both the historical and normative questions. However, I worry that this discussion got a bit too big too fast, and we might actually learn more by maintaining a somewhat tighter focus on the question of property rights.
When I queried Mr. Gobry afterward on Twitter as to just how this grand narrative of human rights proved diddly squat (to use the technical term) about private property, he insisted that the Catechism of the Catholic Church made precisely this leap, granting private property the status of an inviolable natural right in his sense of the word. In short, whereas he had begun by replying to Mrs. Bruenig that, whatever Augustine said, he at least stood with the Catholic consensus, now he conceded Aquinas as well, but insisted that the most recent teaching of the church bore out his position. An odd approach for a Catholic, needless to say (I had always thought it was Protestants who were happy to throw tradition under the bus), but in any case, I hope to show, a waste of time. Mr. Gobry’s appeal to Catholic social teaching simply betrays his continuing conceptual confusion as to what on earth we mean by “natural” and “right” in the phrase “private property is a natural right.” In other words, once again, the conceptual question and the interpretive/historical question are inseparable: to understand the meaning of the documents in question, we must understand the meaning of the concepts in question, and to do this, the best way is to become careful readers of the documents.
To be sure, at this point, this is not really an ongoing debate with Mr. Gobry. In my brief interactions with him, he displayed little interest in such, and finally tried to passive-aggressively dismiss the whole conversation by saying, “But whatever. At some point, patience for deliberate hostility to the foundations of civilization wanes.” To which it can only be said that at some point, patience for deliberate hostility to disciplined rational discourse wanes. Besides, I am not, in any case, a Catholic, so it feels a bit odd to get drawn into a intra-Catholic debate about the meaning of Catholic teaching. So I am not at all interested in a debate that is simply out to determine what the documents of modern Catholic Social Teaching do and don’t teach, as if the resulting conclusion were the final answer. However, Catholic Social Teaching does present, in the form of a well-organized body of thought, key ethical principles that were once the common heritage of the western Church, Catholic or Protestant, a body of thought noticeably lacking in contemporary Protestantism. So if we are looking for a good place to wrestle with theological questions about property rights, we couldn’t do much better than a careful read of CST.
Before we can undertake this task, however (which I will attempt in the following post), there are a good many conceptual questions that crave clarification. Otherwise, we shall find ourselves merely quoting the same passages back and forth at one another, ships passing in the night, as I experienced with Mr. Gobry.
2. Why this Debate Matters
So first let us ask why, in any case, should this all matter? Mrs. Bruenig has already done a bit to answer this question in her post, “Why Think on Legal Realism,” but her points are important and warrant further elaboration.
Put briefly, Mr. Gobry speaks for a very large constituency on what we now call the Right, a constituency always eager to invoke language of private property as “sacred” or “inviolable,” as the “foundation of civilization” and the “cornerstone of freedom,” but without ever really explaining what it is or where it comes from, or how it relates to a whole matrix of other rights and duties. This problem lies behind many impasses in contemporary political and economic discourse, in which a freestanding, handed-down-to-us-on-a-platter-from-the-gods concept of private property is invoked to label all manner of state regulations and distributions of that property “robbery” and thus prima facie invalid regardless of their consequences. But the problem is also larger than that. Put briefly and bluntly, I would say that unless conservatism can exorcise the spectre of its “inviolable individual rights” approach to property, it has little hope of surviving as any kind of cultural bulwark against liberalism. After all, anyone paying the slightest attention will have noticed that most if not all of the great liberal advances in social legislation in recent decades (indeed, since the French Revolution) have marched under this same banner: a woman’s right to choose, a couple’s right to sexual preferences and indeed to “marriage” with whomever they desire, an individual’s right to be free from any form of perceived discrimination. The logic of this advance is inexorable, enthroning as it does individual preferences and limitless freedom of choice as so many millions of pockets of sacred ground, imperialistically demanding that all they come in contact with acknowledge their sway, and that before these claims, the law is powerless. All the law can do is to attempt to adjudicate these rival claims as they encounter one another agonistically in the marketplace of personal identity, like a referee on a soccer pitch where each of the twenty-two players is playing only for himself, with the hope that from this clash of rival wills, some kind of spontaneous order will emerge. Needless to say, any claims made on behalf of the common good or natural order, such as those being advanced by George/Girgis/Anderson against same-sex marriage, must simply be swept off the field, laughed out of court.
It needs little imagination to see that that contemporary conservative discourse about property rights (which, after all, is generally described more accurately as “liberal” or “neo-liberal” outside the ever-idiosyncratic United States) is, far from a bulwark against this ideology, simply another form of it, applied to economic life (but of course, never limited to the purely economic in its effects). Of course, such private property advocates will grant that there may be moral conditions related to the right use of property, which the individual players on the field ought to take into account, but these never enter into the legal picture, at least, except in extreme circumstances. The result of course is that the legal regime is heavily tilted in favor of the strongest, who are given free rein to trample, whether intentionally or inadvertently, on the weakest. Now I do not believe that all these ills, this modern theory of “possessive individualism,” in C.B. Macpherson’s words, may be attributed, via a simple grand narrative, to Duns Scotus or Francisco Suarez or John Locke or to the plural “s” in the word “rights,” but I do, so far as I understand the matter, tend to agree with Oliver and Joan Lockwood O’Donovan that the language of subjective rights as such is implicated in these problems, and at the very least is unlikely to offer robust resources for escaping them.
3. Rights: Objective and Subjective
So let’s begin by clarifying the whole matter of “subjective rights.” It is here that we find an irony deep down in projects like Mr. Gobry’s: he has attempted to ground a particular species of right—property rights—in a whole order of subjective rights which historically and conceptually grow out of a particular way of thinking about property rights. In other words, there is a profound circularity, perhaps a vicious circularity, to it. What I mean could be best elucidated simply by pasting in full the text of Joan Lockwood O’Donovan’s essay “Christian Platonism and Non-Proprietary Community.” But I will put it briefly: the very language of “rights” as plural sets of claims that we each possess arose historically, in the later middle ages, as a way of talking about property relations, since property could be seen as a bundle of claims against (though also obligations toward) other members of society, that each property-owner carried about with him. From this language of rights arose the concept of “natural rights” which was gradually extended to include a larger and larger number of rights, with the French Revolution, and the post-WWI United Nations, spawning a new explosion of these. Along the way, the connection of the word “natural” in the phrase “natural rights” with the older conception of “natural law” gradually fell away, so that rights came to stand over against natural law. (This is another of the amusing ironies in Mr. Gobry’s paean to human rights, in which he purported to treat the modern Catholic teaching as the coalescence of the two great conceptual streams of natural law and human rights in a happily-ever-after marriage, when in fact the two concepts stand in enormous tension.)
Now, in case you want to know what I mean by that, and want to know what I really mean by referring to “subjective rights” in the first place, this could best be elucidated simply by pasting in full the text of Oliver O’Donovan’s article “The Language of Rights and Conceptual History” in which he offers a critical review of Nicholas Wolterstorff’s Justice: Rights and Wrongs. (Wolterstorff’s is perhaps the most impressive attempt to date to argue that the modern conceptuality of ‘human rights” is the most Christian way to think about the moral universe; it should be noted, however, that for him the logic of this leads, with much more consistency I would argue, toward liberal—in the American political sense—and more redistributive politics.) The language of “subjective rights,” as noted already, is to be contrasted with that of “objective rights” or objective right. Put simply, in the latter case, there is an objective rule or standard, the good (or for Christians, God), which determines our duties to all concrete goods and persons; from these duties we may thus derive their corresponding claims on, or rights toward, us. We may thus still speak of “human rights” here, but as a kind of shorthand, recognizing that these rights are simply specifications of a more general right order. In the case of subjective rights, however, rights are spoken of as residing primordially in individuals, and from these plural rights we derive secondarily the general principles of right order, which is to say, the rules by which we seek to make sure these rights are honored and, when they conflict, adjudicated. As O’Donovan puts it, quoting Wolterstorff, “‘the debate at bottom is over the deep structure of the moral universe: what accounts for what?’. Either ‘rights’ are ‘foundational to human community’, so that ‘justice is ultimately grounded on inherent rights,’ or ‘right is foundational, and rights derive from it’.” And as O’Donovan goes on to clarify, the important plurality here is not in different species of right (to life, liberty, etc.), but “in a multiplicity of rights-bearers.” Again, O’Donovan’s concern is not that such language cannot be rightly used as a shorthand, but as a matter of historical fact, it has “made … totalitarian claims to colonize and reorganize the whole sphere [of justice]” so that its derivatory status in Christian ethics has been lost sight of. Now, if you are wondering how any Christian thinker could really, at bottom, be a subjective-rights thinker, since, after all, the intrinsic dignity of the human individual which anchors natural rights derives from the divine image, and thus the primordial unity of the divine goodness, well I would say you are right to wonder. O’Donovan himself can only conclude with puzzlement as to how Wolterstorff actually holds together his commitment to objective created order and to subjective human rights. The framework as such, by rooting moral obligation in something other than the goodness of the eternal law refracted through the various orders of natural law that define the right order of creation, would seem to be inimical to Christian conviction. And yet a great many Christians have enthusiastically adopted it and sought to baptize it, apparently content to live with the inconsistencies.
Now, all of that ground-clearing out of the way, let’s turn at last to the question of property right as such. I hope that I will not transgress too much on the reader’s patience, but we must first come to grips with what the basic conceptual possibilities are when we talk about property as a natural right, so we will know just what it is we are looking for when we come to these documents.
B. Property Rights, Human and Natural
1. The Human Law of Property
Let us then set out the nature of the question as clearly as may be. All parties to the discussion grant that there is such a thing as property rights conceived of as a particular form of legally-granted or -defined right, just as the law confers all manner of rights to receive certain kinds of fair treatment in a court of law, or to have contracts honored in a certain way, or to receive damages for various forms of injury. In some cases, the rights in question have a precedent in pre-legal custom, so that the law comes in and clarifies and defines the right more carefully, and then enforces it with public authority. In other cases, the rights are essentially generated or granted by legal decisions, where before they had no existence. Patent and copyright law, for instance, are good example of this latter; once upon a time, it was common to re-use the valuable artistic material or scientific discoveries of others, and repackage them in your own (hopefully improved) form. But the creation of patent law and copyright law conferred upon the producers of such “intellectual property” the right to sue anyone attempting to do this. Of course, this example obviously sheds a lot of light on our present inquiry; the existence of something called “intellectual property” which previously was not held to exist at all highlights the contingent character of much of what we take for property rights, their foundation in the creative decisions of human law, rather than in some mysterious eternal order.
The basic fact that there are such legal rights (legal realism as a purely descriptive account), then, is not in question. Three matters, however, are. One concerns the relation of such legal rights to pre-legal moral realities. The other concerns the basic structure of those moral realities. The last concerns the content of that moral structure. Let us take each in turn.
For the first, we may imagine a spectrum between a pure legal positivist and a full-fledged biblicistic theonomist. The former thinks that there is no fixed objective moral order that must anchor human law; on the contrary, law simply imposes a functional morality by fiat, and may be adjusted whenever human preferences change. Something like this position is taken by some advocates of same-sex marriage today, when they insist that marriage just is whatever we want it to be. Applied more generally, such a position fairly easily runs into a reductio ad absurdum—is even respect for human life subject to arbitrary legal redefinition? The latter, on the contrary, thinks that there is no scope for creative deliberation in the framing of human law. Law is simply the putting into execution of a morality already comprehensively defined in advance by divine fiat (it is worth noting in passing that these two extremes share a great deal in their concept of the nature of law, and of the lawgiver). Legal rights, then, are simply the formal recognition of what was already the case, without remainder, the public acknowledgment by a particular community of a set of unalterable moral rights.
Now clearly, although it is useful to keep them always in mind as foils, the vast majority of sane political and moral debate takes place well between these two extremes. Most of us are going to grant that the task of human law is to creatively improvise against a backdrop of generally-defined but somewhat opaque moral order. The question we must debate, then, is just how much scope is given to this creativity, or to put it in the terms of the inimitable Richard Hooker, how much law belongs to the category of “mixedly human law” (in which the natural law is simply recognized and enforced by public authority) and how much belongs to the category of “merely human law” (in which public authority specifies right and wrong beyond the scope—although never out of accord with—the natural law). In the present case, then, what we want to know is how much freedom legislators have in defining the boundaries of property rights—the bundle of immunities, privileges, and responsibilities pertaining to different sorts of property (for in truth, the unitary concept of a “property right” in fact encompasses such a plural bundle)—and how much they are bound to limit themselves before pre-political norms of justice.
Our second question is the one we have already briefly discussed above: inasmuch as there are such “pre-political norms of justice,” such a background moral order that limits human lawgivers, is this moral order to be understood as unitary or plural, as consisting in “natural right” anchored in the structure God has given the world or in “natural rights,” anchored in the transcendent dignity of each individual human being (and perhaps other creatures—i.e., animal rights, the rights of the environment)? It should be noted that our answer to this question, while important for framing the discussion, hardly determines the outcome of what we think about private property rights. Indeed, although it might appear at first glance that an emphasis on a unitary right order would tend to privilege the common needs of all humanity over the individual rights of any given property-owner, while a world of plural rights-bearers would privilege the existing owners of property, this is not at all necessarily the case. On the contrary, there are plenty of people who argue for redistribution based on the logic of natural rights, while there are certainly people who have argued for maintaining existing hierarchies based on the logic of right order. Indeed, simply as a historical observation, the revolutionary language of natural rights has generally been friendly to egalitarian redistributive schemes, while the conservative language of right order has generally been friendly to maintaining the status quo in favor of existing property-holders.
Mr. Gobry has chosen an odd band of allies on which to stake his conservative defense of property, and one of the things I hope to show in this essay is just how difficult it is to generate such a defense on these natural rights grounds. In fact, it is precisely because I, as something of a classical conservative, wish to maintain bulwarks against runaway revolutionary redistribution, that I insist on making the so-called “leftist” case on grounds of traditional Christian natural law reasoning. (Of course, it’s also because I think that tradition to be true, and the natural rights tradition to be untenable.)
So the third question we will have to answer concerns the particular content of rights or duties with which we will populate our moral order. Within a natural rights schema, it is possible to lay great stress on a right like “finders=keepers” or on negative rights not to be meddled with, so that the bias of the law is heavily in favor of existing property distributions. But it is also possible to lay great stress on a right to sustenance, or on a more positive concept of the right to liberty, for instance, so that the law is biased to intervene in favor of the dispossessed, conferring on them the property they need to be genuinely free. Likewise, within a right order schema, it is possible, as I have just mentioned, to lay great stress on the good of hierarchy, so that those who by virtue of birth or power control great resources ought to maintain chief responsibility over the use of those resources; but it is also possible to lay great stress on the good of common use, so that existing property holders, at the very least, are bound to use their property for others, or perhaps to redistribute it. This way of putting the matter will hopefully highlight the fact that, whichever approach you take, there may be a great many goods/rights in the neighborhood that have to be weighed or balanced against one another; it is not a matter of appealing simply to “the natural right to private property” as a way of settling the political question in advance.
All of this ground-clearing will hopefully help us better understand what we mean by the word “right” in this context. A bit more needs to be said, however, about what we might mean by the word “natural” before we can adjudicate the claim to a “natural right to private property.”
2. The Natural Right of Property
Do we mean that it is natural in the sense of simply existing in nature from the beginning? Or do we mean that it arises naturally in the course of human interaction with the natural order? Or do we mean that it is rooted in human nature somehow? Or do we mean that it is a development that is in accord with the natural law, the natural order? Usually, those making such claims do not specify what they mean. So let us explore a few options, and see which lead to dead ends. For private property simply to be there, naturally, from the beginning of humankind, like sex or eating or friendship, would be a bit difficult to make sense of. Property, after all, is a relation, not a thing, and it is not really, upon consideration, a relation between the property-holder, and the object(s) in question (land, for instance). Whatever exactly it might mean to speak of such a relation, the really important relation in the picture is that between the property-owner and all other people who do not own the property in question. How might such a relation simply exist, primordially, at the beginning of the human race? One could, I suppose, revive the old patriarchalist theory of Robert Filmer, and imagine Adam to be given dominion over the whole world as his private property, to be passed down to his heirs by the proper rules of inheritance (primogeniture, presumably), but I don’t think this theory has many adherents today.
So this probably cannot be what we mean by a natural right to private property. The mention of friendship might seem to help us—after all, this is an interpersonal relation, to which we are naturally predisposed, and which we naturally enter into with other people, without law having anything to do with the matter. Marriage too might be an example. And yet friendship is a relation only between two (or a small number) of people, whereas a property relation is, ultimately, a relation between one person and, potentially, all other human beings that might come into contact with his property. For such a relation to be meaningfully formalized, then, we will need law. The question, then, to come back to a point made above, is whether law here might be said to be bound to recognize certain natural norms. That is to say, is it simply the case that in the course of human interaction with one another and the world, there are conditions that make us all generally recognize, this person has acquired a moral right to exclusive control of this resource? And if so, are these conditions rooted in what people do, or what people are?
If the latter, if there is just something in human nature that means that, to be truly human, people should have property (i.e., just like we should be able to form friendships, or speak, to be truly human), then one might plausibly argue that the law ought then to make sure that everyone is given property. If they have a natural right to it, rooted in their transcendent dignity, well then to allow some people to have property and not others would be as unjust, and as gross a violation of human rights, as allowing some people to speak and not others, some people to choose wives and not others. This is why I have said above that the language of natural rights actually tends to have a bias toward radicalism on the matter of property. If the former, however, if there are certain things that people can do that necessarily ought to give them property rights (i.e., labor), then we are actually not really talking about natural rights in the strict sense anymore, things that people just have by virtue of being human. (One can try to hold these together by arguing, as Locke did, that we do have a natural right to possession of ourselves, and that labor metaphysically unites external things to us; but in reality, most people who appeal to the Lockean narrative reduce it to a metaphor for a desert theory). Rather, we’re talking an about an order of justice, in which certain actions deserve certain rewards from other people, and society in general. People who take certain steps to make productive use of the world are entitled to have rights to own a share of it recognized by society. In other words, we’re dealing with a species of right-order theory, a fact which can be blurred by the simple fact that we’re continuing to speak of property “rights” and labelling these “natural”; but the “rights” here in question are political rights, bestowed on the recognition of a right order of justice; they are not, in the full sense, rights that the bearer simply brings with him into society. No, society may act unjustly in refusing to accord to this laborer the property which he has fairly earned, but it cannot take from him property that he already has as a matter of pre-political right. Not, at any rate, unless the property right is his by virtue of human nature alone, in which case, as I said, it is difficult to avoid the conclusion then that every human being enters into society with a pre-political right to property that must be duly recognized. This may seem like a hair-splitting distinction, but it really is profoundly consequential.
Now, in point of fact, the latter emphasis—that property is rooted in what people do, not merely who they are—need not exclude the former. That is to say, we might well say that there are certain features of human nature that predispose us to the possession of something like private property, that there are intrinsic human goods that, to be fully realized, require that we each be masters of our own little corner of the world, learning to exercise our freedom in dominion over it. (To be sure, we may wonder whether such a generalized statement is tenable in light of the many tribal societies that do not think that way, and favor more communal property arrangements.) But we must also say that this is not automatic. Just because, for instance, marriage is an intrinsic human good to which we are naturally disposed does not mean that we all just are married, or can declare ourselves so whenever we want. To get married, you need to do certain things to establish this relationship. Likewise, to realize the good of property ownership, you have to take certain actions (i.e., laboring in some way or another, or putting to use your capital—stored-up labor) or else by meeting certain conditions (having goods bestowed on you by gift or inheritance) which give you a just title to have your property rights recognized. Of course, as noted above, there is a key difference: the marriage relationship, while it has implications for every other man and woman out there, who is thereby designated, “not-your-spouse” is, in itself, a relationship only between two people; the property relationship, on the contrary, is a relationship with the whole community or commonwealth and thus, we emphasize again, simply cannot exist without recognition in law.
All of this then leads us to the conclusion that when people speak of private property as a “natural right,” then they must mean one of two things. Either it really is a right naturally resident in each and every human being, that must simply be codified and formalized by legal recognition, in which case, everyone must have their fair share of property. Or it is something that it is naturally right, i.e., in accord with human nature and natural justice, for us to recognize, but the specific form of that recognition is wholly rooted in human law, something added to nature. This is of course Aquinas’s formulation, stated with his characteristic precision:
“community of goods is ascribed to the natural law, not that the natural law dictates that all things should be possessed in common and that nothing should be possessed as one’s own: but because the division of possessions is not according to the natural law, but rather arose from human agreement which belongs to positive law, as stated above. Hence the ownership of possessions is not contrary to the natural law, but an addition thereto devised by human reason.”
3. Private Property and the Universal Destination of Goods
However, there is another matter of natural right in the neighborhood which is so fundamentally rooted in human nature that human law can in no way create it, but only recognize it. This is the common right of all human beings to the use of this world’s goods for their sustenance and flourishing. Aquinas is really pretty clear about this as well, though somehow his words, as we shall see below, have become the source of some confusion. He says,
“External things can be considered in two ways. First, as regards their nature, and this is not subject to the power of man, but only to the power of God Whose mere will all things obey. Secondly, as regards their use, and in this way, man has a natural dominion over external things, because, by his reason and will, he is able to use them for his own profit, as they were made on his account: for the imperfect is always for the sake of the perfect, as stated above. It is by this argument that the Philosopher proves (Polit. i, 3) that the possession of external things is natural to man.”
but then he goes on to specify in art. 2,
“Two things are competent to man in respect of exterior things. One is the power to procure and dispense them, and in this regard it is lawful for man to possess property. . . . The second thing that is competent to man with regard to external things is their use. On this respect man ought to possess external things, not as his own, but as common, so that, to wit, he is ready to communicate them to others in their need. Hence the Apostle says (1 Timothy 6:17-18): ‘Charge the rich of this world . . . to give easily, to communicate to others,’ etc.”
Taken together, these articles generate a threefold distinction: control over nature, control over use, and control over administration (potestas procurandi et dispensandi). The first belongs only to God, the second is “natural to man” but is common, not private, and only the third, “an addition to the natural law” as we saw above, is private.
The important thing to note here for our purposes is that this common right precedes, justifies, and thus ultimately in cases of conflict trumps any individual private property rights. It is this that the later tradition of Catholic Social Teaching has described under the heading of the “universal destination of goods.” The same principle is evident in the teaching of the early Protestant Reformers. The reasoning here is quite simple: human beings do have a transcendent dignity as bearers of God’s image and capstone of creation, and therefore it is essential to them that they have life, health, and the ability to thrive and use their various God-given powers. As animals, though, human beings rely upon the material world for such sustenance. No human being is intrinsically more valuable than another, so none may be instrumentalized for the benefit of another or deprived of this access to life. It follows therefore that the natural destination of goods is universal—the world belongs to everybody. Such common use, to be sure, may be achieved largely through market mechanisms—when the farmer sells his produce in the market at a reasonable price, he enables it to be used by mankind in general. And it certainly need not imply that everyone have access to the common use of everything—that would be impossible, in any case. In principle, then, the division of possessions into parcels of private property is not inimical to the universal destination of goods, so long as everyone has enough to make sure they get a decent share. Indeed, private property is a very good way of helping achieve better common use than we would have under a simple free-for-all. But because common use is a fundamental and irrevocable principle of the natural law, private property must be ordered toward it, rather than vice versa. If it is true that there are aspects of human nature that crave fulfillment in the right of private dominion, then this certainly adds additional weight to the institution of private property, but it is not sufficient, as we have seen, to make private property a free-standing good toward which all other goods are ordered; on the contrary, whatever subsidiary goods might serve the good of private property, private property itself must serve the good of common use.
Pope Francis’s recent exhortation, Evangelii Gaudium, puts this point very succinctly:
“the social function of property and the universal destination of goods are realities which come before private property. The private ownership of goods is justified by the need to protect and increase them, so that they can better serve the common good.” (par. 189)
And yet I was told by Mr. Gobry that the notion of private property as an instrumental right was a “tendentious reading” of the Catechism of the Catholic Church. Accordingly, in the next post, we will turn to the various Catholic documents on the subject of the past century or so to get to the bottom of this.
 Although not focused on the origin of property rights per se, much light is shed on the Reformers’ views on social justice questions by Samuel Torvend, Luther and the Hungry Poor: Gathered Fragments (Fortress, 2008), and André Bieler, Calvin’s Social and Economic Thought (WCC, 2005). See also footnote 9.
 In Oliver O’Donovan and Joan Lockwood O’Donovan, Bonds of Imperfection: Christian Politics, Past and Present (Grand Rapids: Eerdmans, 2003), 73–96.
 Oliver O’Donovan, “The Language of Rights and Conceptual History,” Journal of Religious Ethics 37.2 (2009): 193–207.
 O’Donovan 195, quoting Wolterstorff, JRW pp 35, 5, and 4.
 O’Donovan 201.
 ST II-II q. 66. a. 2 ad 1.
 ST II-II q. 66 art. 1, resp.
 ST II-II q. 66 art. 2, resp.
 Melanchthon’s exposition in his 1521 Loci Communes is remarkably forceful and lucid. He begins by enumerating three main laws of nature “1. God must be worshiped. 2. Since we are born into a life that is social, nobody must be harmed. 3. Human society demands that we make common use of all things.” Then he goes on:
““The third law, about the common use of things, obviously arises from the very nature of human society. For if the saying ‘Friends have all things in common’ ought to be valid when a few friends are involved, why should it not hold among all men? It should, since all are supposed to cling together as brothers do with brothers, children with parents, and parents with children. For the law not to inflict harm has commanded this. . . .
“But because human avarice does not allow that we use all things in common, this law had to be corrected by the one above, the law that no one be harmed. Things must be shared to the extent that the public peace and the safety of the group permit. For as a rule inferior laws are corrected by higher ones, and public sharing must be regulated according to some limit. . . .
“Therefore, another law must be subjoined to the third, namely, that property must be divided, since the common welfare of the multitude so demands. Furthermore, since it is a condition of human affairs that there is need of at least some sharing of property because by nature things ought to be in common, it has been decided that their use be shared, for instance, through contracts, buying, selling, leases, rents, etc. And here you discern the origin of contracts….One must not look for any other model of a well-constituted state than that state in which it is possible to observe the rule that friends must share. Thus contracts have been devised through which the goods of each are shared by the many so that there may be at least some sharing of things.”
In other words, private property is introduced in a state of sin as a way of realizing the original natural good of common use. If we can’t have a truly common property regime, then we should come as close as we can to achieving the same end under a private property regime.
Calvin’s remarks in his Commentary on the Sixth Commandment are clearly informed by this principle:
“Since charity is the end of the Law, we must seek the definition of theft from thence. This, then, is the rule of charity, that every one’s rights should be safely preserved, and that none should do to another what he would not have done to himself. It follows, therefore, that not only are those thieves who secretly steal the property of others, but those also who seek for gain from the loss of others, accumulate wealth by unlawful practices, and are more devoted to their private advantage than to equity. . . .
“We must bear in mind also, that an affirmative precept, as it is called, is connected with the prohibition; because, even if we abstain from all wrong-doing, we do not therefore satisfy God, who has laid mankind under mutual obligation to each other, that they may seek to benefit, care for, and succor their neighbors. Wherefore He undoubtedly inculcates liberality and kindness, and the other duties, whereby human society is maintained; and hence, in order that we may not be condemned as thieves by God, we must endeavor, as far as possible, that every one should safely keep what he possesses, and that our neighbor’s advantage should be promoted no less than our own.”
This reading of the sixth commandment, that it implies not merely a duty to refrain from *taking* from our neighbor, but a duty to actively advance our neighbor’s material estate, became a commonplace of Protestant catechesis. See for instance in Luther’s Small Catechism and Large Catechism, in the Heidelberg Catechism Q. 111, and the Westminster Shorter and Larger (Qs. 141-42) Catechisms. By making such regard for the material common good part and parcel of the command against stealing, these Protestant texts make clear that the social use of property is not something added on top of a freestanding private right, but is part and parcel of that right, its raison d’etre.
22 replies on “Recovering the Catholic Doctrine of Private Property (Pt. 1)”
I haven’t read all this yet, but it is funny that you used the 1521 Loci in a footnote. I was thinking of posting on this very passage. I guess I don’t need to now!
Sorry, that was me.
Two points here. First, though intramural discussions are essential, some discussions should take a form that invites a wider audience. Especially with the current cultural debate over same-sex marriage and Christian business owners seeking religious exemptions from providing their pubic services for certain groups and/or events, a rendering of this essay for a wider audience just might make it an evangelical and an apologetic tool.
What seems to be missing, and perhaps I overlooked it, in the Conservative Christian discussion of rights is a discussion about collective or group rights. This is what democracy is about. I say this because there are Conservative Christians, whether it is because they are strong with the Force or not, deny the existence of such rights because they foresee a conflict between the individual property rights they champion and the claims of the community voiced through democratic processes.
Now in this article, sometimes democracy is assumed but the community could also be represented by the alternative to democracy, elite centered rule. Of course, this is only part 1 so a discussion including collective or group rights could be in the works. But I think that we need to make the distinction between democracy and elite centered rule in stating that it is only in democracy that group or community rights can be truly exercised. Otherwise, we will have at best is a vanguard, much like what both theonomists dream about and Lenin implemented, that claims to act for the rights of the people. The other kind of elite centered rule involves a more explicitly tyrannical government.
I’ve sometsometimes heard Francisco de Vitoria appealed to as an early Catholic (and Thomist) advocate of human rights. Could someone speak as to whether or not Vitoria could reasonably be claimed by someone like Gobry?
[…] Pryor of Regent University School of Law has posted a short response to Dr. Littlejohn’s initial essay on private property, and you can read it here. While appreciative of Dr. Littlejohn’s argument, Professor Pryor […]
[…] Pt. 1 for an introduction to the theoretical issues at stake in this […]
Curt, thank you for your comment. I certainly agree with you that this needs to take a form that invites a wider audience. It is my hope that this initial, possibly over-thorough examination will serve as the basis for subsequent more popular-level explanations and applications. Indeed, my understanding is that Elizabeth Bruenig is planning to do a bit of that on her blog in the next few days.
As far as democracy, well, I’m not sure I would agree. Certainly the development of the institutions of western democracy has in many ways helped make the ideal of community rights a reality (though we should be realistic about how poorly the community as a whole is really represented in most so-called “democracies”). But it does not follow that the concept of representation can have no reality outside the institutional arrangements of democracy. On the contrary, there have been times and places in which monarchical rule has more effectively channeled the will of the people and been perceived as a faithful steward of community right than is the case in some democracies today. The process by which a people becomes a community united around a common right, representatively enacted by sovereign authority, is a much more mysterious and complex business than the mere creation of certain democratic procedures.
I fully agree that democracy itself guarantees no rights. This is especially true in the American form where we practice a bipolar, laissez-faire kind of democracy. It is bipolar because it is based on the two party system. It is laissez-faire because we are so focused on getting prosperous that most of the voters wants as little involvement with the government as possible and so we look to vote for a government we can ignore until the next election. But even when it is least efficient in guarding people’s rights, it forces the government to address more perspectives and sides of an issue than what elite centered rule is forced to do.
What completes democracy is when it is extended to the workplace and when Individual ownership rights of property, especially property used to generate profits, is balanced by collective ownership rights, the rights of all the stakeholders. This balance must be flexible depending on the inter-dependencies that currently exist in the economic system. In so doing, we recognize what Martin Luther King Jr. said when calling for a synthesis of Communism and Capitalism: “communism forgets that life is individual. Capitalism forgets that life is social”
Certainly centralizing control increases efficiency but it also makes everybody more dependent on the benevolence of the elite. So at best you give thanks for the paternalism du jour because it could disappear tomorrow. My studies tell me that elite centered rule produces privileges for some, especially the elites, rather than liberty and rights for more if not all. After all, there are overhead costs to consider. And my observation, coming from an authoritarian denomination, is that it is rather difficult for many in my denomination to turn off the authoritarian switch once they venture out into the real world. This kind of hurts our ability to share the Gospel.
[…] – Charlie Ducey, EP Wanted: Code of Shareholder Ethics – Bruce Edward Walker, PwrBlg On Property Rights; Subjective & Objective, Human & Natural – W.B.L. The History of Anti-Catholic Violence in the U.S. – Fr. David J. Endres The […]
This very good discussion might be helped by distinguishing questions of private/public property from questions of individual/common property. The first pertains to roles and relation of civil government. The latter pertains to the kind of person or persons in whom rights vest. Thus, for example, individual property can be public, e.g., where property is held directly or in trust by a ruler for exclusively public purposes as in certain monarchical forms. Likewise, common property can be private, as traditionally many ancient forms of non-public property vested in corporate familial entities and today, many kinds of commons are held privately, i.e. not by governmental entities.
Much or your overall argument hinges on the idea that common property is not private property. But I don’t see an argument for this. Common property is not individual property, but this does not mean that it is public either. In the same way, civil society neither belongs to an individual nor to the government. It is a manifestation of the people not in either their un-aggregated individual nor their governmentally aggregated capacities. If there is natural common property, this does not demonstrate anything about the question of the government’s right to regulate or interfere with it, just as the fact that something belongs to the commons of civil society does not mean that government can interfere or regulate it. The commons may have rights which it retains independently of government and modes for regulating and acting, e.g. custom, which do not depend on governmental organization. It is also not clear based on Deut 32:8 and Act 17:26 that mankind is a single commons with respect to the goods of the earth. Mankind comes predivided by God into many communities or commons.
In general, very much of your argument also hinges on the modern conceit that people cannot have a real relation to land or other things, i.e. that all property descriptions of relations between persons and things are really ways of talking about relations between people. But the Biblical witness seems very clearly to teach that God, at least, can and has created real relations between people and land, at least.
Welcome, and thanks for your thoughtful remarks here. Dr Littlejohn can speak for himself but for my part, I agree that the common/personal distinction is an important one for this discussion. But in your public/private distinction, might not much of your argument hinge on the modern conceit that there is no real common good, and thus that the State is merely an outside arbiter of contracts whose forum is civil society?
As for relations between land and people, I think the Biblical accounts you mention tell of a covenantal relation between persons (divine and human), with prosperous tenancy in God’s land (for He is the sole true owner, I think all will agree; certainly the Bible says this) as the benefit on the human end of that interpersonal covenant. God cannot properly be said to be *people* of course, but He is personal. So I don’t see that the Bible teaches any kind of primordial relation to land of the Lockean sort (at least as Locke is usually conceived; and that is what is at issue in this essay).
Petre, pax tecum:
To distinguish public and private, one needs no lockean commitments, which I lack, only observation of the difference between [public] things pertaining to rulers, who have God-given authority over others, and those [private] things pertaining to the ruled.
Dr. Littlejohn’s argument naturally applies to both public and private property, but he artificially limits it to private property. He thereby misses an easy rhetorical opportunity to explain why insisting on the priority of common over individual rights is not statist, but places analogous limits on the individual state and the individual natural person, both of whose rights over things occur not as a matter of natural law, but as a result of positive acts of division.
For example, he writes: “Taken together, these articles generate a threefold distinction: control over nature, control over use, and control over administration (potestas procurandi et dispensandi). The first belongs only to God, the second is “natural to man” but is common, not private, and only the third, “an addition to the natural law” as we saw above, is private.”
But “common” is not opposed ordinarily to “private” because many things, like a hallway in a condominium, are common and private. Furthermore, if something is public, there is no implied right of common use, e.g., try signing up for a night in the Lincoln bedroom. It would have been better to write: “the second is ‘natural to man’ but is common, not individual, and only the third ‘an addition to the natural law’ is individual.”
What is gained? We recognize that common rights trump any individual use, whether it is a public individual, like a sovereign, or private individual, like a natural person. Littlejohn’s argument shows not only that private property divisions are not a matter of natural law, but also that public property divisions are not. The common right of man stands prior to both the rights of governments and subjects. As the story of Naboth shows, governments are just as likely to interfere with common rights as non-governments. (Naboth refused to sell the land to Ahab because it belonged to his tribal commons.)
Littlejohn continues: “The important thing to note here for our purposes is that this common right precedes, justifies, and thus ultimately in cases of conflict trumps any individual private property rights.”
Why limit this to private property? The common right not only precedes, justifies and trumps individual private property but also public property. Man’s common right not only limits Fred’s use of his property but also the United States use of its property. If Fred cannot rightly deny property to someone because of its common destination, neither could the United States do the same if it was the holder. But the use of the word “private” obscures this. Since Littlejohn’s interlocutor was primarily concerned about limits on government, he needlessly limits his argument in a way that would have assured his audience.
With respect to real relations of people to things, I do not agree that Deuteronomy and Acts teach that God made a covenant with each nation. (De 32:8 When the Most High gave the nations their inheritance, when he divided all mankind, he set up boundaries for the peoples according to the number of the sons of Israel. )(Ac 17:26 From one man he made every nation of men, that they should inhabit the whole earth; and he determined the times set for them and the exact places where they should live. 27 God did this so that men would seek him and perhaps reach out for him and find him, though he is not far from each one of us.) Indeed, Acts suggest that the providential division was made for the purpose of establishing personal contact.
P.S. Thanks for the generous courtesy, but I should point out that I am a “doctor” of law and hence not conventionally entitled to the honorific.
Thank you for this thoughtful contribution to the discussion. Briefly, I think you are quite right to call attention to this distinction between distinctions——public/private, common/individual——and right too to emphasize that just as the distinction of the resources of the earth into formally private property requires the intervention of positive law, so does any specification of them as public property, to be administered by the civil authority. This follows, I think, from a Hookerian (not in any way unique to Hooker, of course, I just find Hooker’s articulation particularly helpfuL) between the social character of mankind, which is strictly natural, and the political organization of mankind, which is in accord with nature but requires consent and organization. I am not sure that this added distinction undermines much of anything I was trying to do in this exposition, but it certainly adds a helpful additional dimension, which would play a key role in any subsequent attempt to show how this sort of legal realism about property need not imply the statist totalitarianism which people like Mr. Gobry fear.
That said, I, like Peter, am not sure I want to go all the way with you in the way that you have distinguished the commons of civil society from the publicity of public authority. These are very complex issues, on which I do not claim to have a fully-worked out view myself, but suffice to say that I think that the public authority is the guardian of all questions of justice that arise in mankind’s common life, and so while questions of common use of property do not ipso facto fall under government administration as matters of public property, they are liable in principle to adjudication by the civil magistrate as guardian of the common good.
In actual practice, I think the distinctions you have sketched blur into something of a spectrum. There are, for instance, things like the Lincoln Bedroom, held for the public but not for common use, and there are things like clean air, which ought to be protected for common use, a protection that may ultimately require legal regulation, and there are things like national forests, where the need to regulate for common use is achieved by a form of public ownership.
I agree these distinctions don’t undermine your argument at all, but strengthen it mainly by clarifying what you are not arguing. This strengthening is certainly my goal because I think critiques like yours of the liberal/contemporary natural-law view of individual property (and contract) are centrally important for contemporary Christian ethics and legal theory.
In addition to emphasizing that natural common right is superior to both private and governmental control of things based in positive law, there are some additional rhetorical clarifications that you might consider.
The “Gorbies” of the world, concerned about collectivism, may misunderstand your correct claim that there is no natural right to private property to mean:
(1) that there is no natural principle against government ownership of all the means of production, a la Pharaoh and Pol Pot;
or (2) that pursuant to natural law, the state may take for itself or may redistribute private property without any respect for preexisting positive property rights, e.g. providing compensation, merely because these rights are not fundamental grants of nature.
I think it would be very helpful if you explained explicitly that your denial of natural right to private property is not an affirmation of either of these positions. The second, I think, is an especially important question for conservatives who want to affirm your position without succumbing to a revolutionary attitude.
It would probably also be useful to acknowledge how very far away we are in the United States from holding property rights to be inviolable. U.S. property rights are riddled with eminent-domain takings, zoning and environmental regulation of use, property and estate taxes, limitations on perpetuities/inalienability, limitations on conditions of transfer, e.g., social regulation of selling, leasing and rental relations, the granting of rights to tenants in default, etc. As a matter of law, there is no existing principle of inviolability in the various U.S. property regime, certainly not in constitutional law.
Given how violable U.S. property rights are already, I think the Gorbies may be concerned that you are arguing for even further governmental intrusions into property rights, instead of defending the principle of subordinating individual property right to the common good that already exists.
It might be useful also to note which of these set of current governmental intrusions on individual, familial, corporate or common property rights you regard as a governmental violation of the common natural right. For example, how do you feel about the use of eminent domain to transfer property from one private holder to another private holder as in the infamous Kelo case.
Finally, I would be very interested in your view of the remaining ungoverned commons of mankind, e.g., the ocean and its fisheries, the atmosphere, Antarctica, or outer space. Would it be consistent with your view to hold that no right of individual property could arise until these things come under some legitimate political control? E.g., would it be possible for a private person to own an asteroid, for a nation to take sovereign control of it? Even so, I assume that you would recognize natural rights of possession operating? I cannot own a part of the Pacific, but I can take rightful possession of a fish that I catch in ungoverned waters? You might illustrate some of your views neatly by reference to some of these questions. You might find it startling how far recognizing natural rights of possession take one even without recognizing rights of property.
Thanks again for these helpful comments. It appears that our purposes dovetail fairly well. You are quite right that the next step in my argument (a step that perhaps could and should have been taken partially within the scope of these two posts, but at 15,000 words, I wasn’t exactly looking for more material to add) is to explain how, although natural law cannot yield private property in Mr. Gobry’s sense, in nevertheless can yield some constraints on public ownership and governmental redistribution, such as the Gobries of the world are so concerned to emphasize. If you look back at my original post a month or so ago, you will see that I had in fact intended to explore just this side of the question, only Mr. Gobry (despite initially acknowledging that I seemed to take his concerns seriously and had summarized them fairly), sidetracked the discussion by insisting that Catholic Social Teaching supported his idea of a “natural right to private property,” thus demonstrating continuing conceptual confusion on the issue of natural rights, and inability to read the tradition with comprehension. Having tried to address those issues thoroughly, I do hope to turn my attention back, once time permits, to articulating all the necessary safeguards against collectivism.
Also, your suggestion that much headway could be made by drawing attention to the empirical facts of existing property law is much appreciated; this is something I have been thinking a lot about lately. Most ideological discussions of property rights seem to float free of the concrete realities of existing property regimes, most of which can be shown to already recognize the complex interplay of private and public, individual and common rights. Of course, libertarian purists will contend that this is proof of how infected our legal system is with soft collectivism, how poorly it protects the true right of private property (I have certainly encountered such contentions), but true conservatives, hopefully, will take such legal principles quite seriously, and rethink their simplistic slogans accordingly.
As far as the remaining ungoverned commons, well I think that what you call the “natural rights of possession” here are really no different from the “natural right to common use.” That is to say, the *use* of a piece of productive property, or a means of production, entails the possession of that which it produces; a common right to make use of an apple tree, for instance, at some point reduces to the right of each using individual to possess particular apples, since the *use* of an apple consists in consuming it. Likewise, no individual can take ownership of ungoverned waters, but he can take possession of the fish he catches there, as part of his right of common use (that is, so long as he does not catch so many fish as to deplete the stocks and leave others unable to use the fishery——which is in fact a huge problem today, one which highlights the need for common use to usually be codified at some point by some form of law, in this case international law). In a situation where one individual only discovers and is using an ungoverned commons (i.e., the asteroid), then he may take “possession” of it, not only using it but administering it. But he cannot exclude others from it (private ownership in the full sense) without public authority playing a role. Of course, justice may require that public authority recognize the work he has already put into managing this resource, and reward him with formal ownership rights, to the extent that he can be trusted to continue to administer the resource in a way ordered toward the universal destination of goods.
You are the one who deserves thanks for your writing, which has set forth these important points more forcefully than anything in memory. This is critical work that you are doing and doing very well. I believe important things can come of it; personally, it has been very helpful to me. None of my suggestions are intended as criticism of the substance of what you wrote.
While my mind is on it and since you expressed interest in positive law, there are two other examples of the way in which common-law property has traditionally recognized the superiority the natural common right: (1) until the modern era, c. early to mid-19c depending on jurisdiction, ownership of unenclosed land did not give the right to exclude harmless physical presence of others – some interference with use or harm to the land had to be shown, i.e., non-owners could enter upon unenclosed land that was owned by another and as long as their use did not harm the use of the owner, there was no violation of right. A different regime applied to homes. Moreover, to this day, mere interruption of sole possession is insufficient for a trespass action to chattels, personal property. If you leave your shovel out in public and I pick it up and make quick use of it knowing that it is yours and without permission and return it, no trespass action will stand without proof of damage. (2) the right of ownership in land has always and still is subject to the superior privilege of necessity, i.e., anyone has a right to use another’s land or property where an imminent necessity makes it needful to avoid loss of life, personal harm or loss of goods, e.g. if I seek necessary shelter at your dock during a dangerous storm, the fact that you own the dock does not give you the right to untie my boat because I have an actual right grounded on “necessity” of use, i.e. needing to protect against injury or loss of goods, to use it. This is true even if my use of your dock is damaging it, e.g. when my boat is thrown against it, though I will have to compensate you for damage, I cannot be lawfully denied my right to possession.
I think I would distinguish possession and use in the following way: possession refers to the kind of control of an object, sometimes called “detention,” necessary to establish rights for the holder in relation to the thing under his power. Possession also refers to the rights that flow from such power and control and relation to a thing. “He has possession of the car” might mean he has certain factual control over it or he has the right of possession. By contrast, some use of an object can be had without possessory control or power over it or without any rights in relation to it, e.g., where I gather fruits from land that fall off the trees. Further, someone like a bailee may be in possession with no right of use, nevertheless his right of possession gives him rights to prevent others use. Certainly, one must take possession of the material to be used and separated from the thing, but this does not meet that one has possession of the thing from which the use is extracted.
The question is whether there is any natural possession of a thing that gives any rights over it, including rights to use or rights to property. So, for example, I catch a whale and tie it to my boat. You pull your boat up next to it and start to carve some of the whale off for your use. Does my prior taking of possession of the whale give me the natural right to bar your use?
Your answer, I think, is that possession does not give me the right by nature to exclude. I cannot keep you off the whale or from using the whale although I am in possession. But I am not so sure. I think, for example, you would agree that while I cannot naturally own the waters, if I am floating in a boat on the ocean and thus is possession of that spot, then you cannot drive your boat into mine to force me from the spot that I am occupying. Or, for example, if I sit on a rock in the ungoverned wilderness and am resting, not only do I have the natural right to use the rock for resting but I also have the natural right to retain possession. You cannot force me to move so that you can share the rock. If by right to exclude, you mean that he does not retain the right to exclude after he has abandoned possession, then I agree with you. But while he is in possession, it seems to me that he has the right to exclude … otherwise when he plucks the apple and take possession of it, another “common user”, could take the apple away from him or bite a bite before he gets it to his mouth.
There is a related historical debate here in the natural law tradition, which formed around the right to debris after a shipwreck. Suppose after a shipwreck about to drown I grab a plank of wood. The plank suffices only to float my weight. You later swim up and want the plank. May you take it? Or, must you give way to the other’s right by possession?
I think I would judge that one who is currently in proper possession has certain natural rights to exclude others and against a government instituting a property system that must be respected. He must at least be compensated for his right of possession, which requires less than compensating for a right of ownership, but is still something.
The successful common use of the atmosphere and seas for transport is a great example of why property regimes are not always necessary or desirable. The difficulties with fisheries is not necessarily contrary since nations seem to be finding ways without a sovereign and ownership rights to share the commons. It is hardly clear that a world government assigning property interests in the fish would necessarily do a better job.
Very useful reflections, thanks.
I have just one question: might not the “right to exclude” you’re suggesting in these hypothetical desert island/commons cases be rather a “right to *not be excluded* by a newcomer”? With a concomitant obligation to include said newcomer, if at all possible?
Very nice way to put it, Peter.
Let me change the example to set the problem more clearly. I pick up a nut and am holding it between thumb and finger. The right to exclude allows me to close my hand around the nut in order to keep you from fingering it; my right not to be excluded includes your duty not to clench your hand around the nut, drawing it from my fingers.
Surely, by the first right of common use, we all have the right not to be excluded. But, if we say that natural possession can creates rights of limited exclusivity, then the possessor gains the right not only not to be excluded but also to exclude.
Another example: before I sit on the unused rock in the ungoverned wilderness, all have the right not to be excluded from the right of common use. After I sit it, if we allow possession effects, I have the same right not to be excluded and the new right to exclude, i.e. you have a duty not to sit on the rock so as to bump me off or to sit on top of me so as to interfere with my preexisting use.
Does that sound right?
Thanks again for the very high-quality interaction. I plan to be in correspondence with you soon as I carry this project forward, and we can thrash out several of these matters more fully then.
For now, let me just come back at you regarding your whale example. Perhaps it is woefully oversimplistic of me, but it seems to me as if there is a key distinction when thinking about these matters between *productive property* and *objects for consumption*. The former is where all the important argumentation about private property rights lies. This is because so long as people have access to the former, they will be able to produce what they need for consumption, and accordingly, the right to exclude someone from the former is a much more serious moral question than to exclude someone from the latter, and must meet a much higher burden of justification. Now I recognize this is not a hard-and-fast distinction—the whale, for instance, need not be straightforwardly consumed as meat, but could be used to produce a limited quantity of oil or bone products; and even an apple has some productive capacity inasmuch as it contains a seed that can grow into a new apple tree. But in the example you give, I would say that the reason you cannot come alongside and start carving off bits of the whale I have caught is the same as the reason you cannot pry an apple I have picked from my fingers (assuming I have not acted unjustly in either case, in taking so many apples or whales that there are none for others)—because in this case, I have specified my generic right of common use by taking certain individual items from the pool of those I have a natural right to consume and designating them for my consumption.
This seems to me distinct in important ways from taking possession of a fishery or an apple orchard and excluding others therefrom—such rights can be generated, to be sure, but not unilaterally. Of course, you speak of “taking possession” of a particular fishing spot, from which you have a right not to be forced. This too would seem simply the logical corollary of a common right to the use of the fish—it is impossible for you to exercise that right without stationing your boat somewhere within this common fishery, and having thus specified your right (I am using *this portion* of this fishery at *this point in time*) I could not drive you away without abridging your right of common use.
Yes! Your line is precisely what attracts me to concepts of natural rights of possession: “’taking possession’ of a particular fishing spot, from which you have a right not to be forced … would seem simply the logical corollary of a common right to the use of the fish…having thus specified your right (I am using *this portion* of this fishery at *this point in time*) I could not drive you away without abridging your right of common use.” To restate, natural common right to use entails a natural right of possession and this natural right of possession entails my natural right to exclude all others in acknowledgement of the established individual exercise of my common right of use. Thus, we have, not a natural right to individual property, but a natural right to exclude deriving from established and continuously maintained use. Incidentally, this helps explains the justice in the way that the positive law treats nonuse of property, i.e., property owners do not have absolute rights of nonuse, see e.g., doctrines of adverse possession, permissive waste, public and private nuisance from non-maintenance, abandonment.
The Problem of Natural Possession: Possessing Things Larger than Hand’s Grasp
We can now expand our analysis dramatically along a new dimension. Who are the agents of possession? We have been speaking as if the most likely agent is a natural person. However, practical and historical reflection will lead us to consider that the most basic possessive agent of land or whales, is a tribal nation, i.e. a large, self-sustaining group of people.
First, from the practical perspective, the natural right of possession of large things can usually be effected only by the group and not the individual. The biggest difficulty with the whale hypothetical for me, (more about your important distinction between private and personal property momentarily), is the question of whether killing a whale and tying it to a ship could constitute individual possession. How exactly does one man establish the kind of physical relation to a massive thing like a whale (or, later more importantly, farmland) in the same way that one does to a nut, which can fit within one individual’s hand or mouth? Possession seems to give a natural right to exclude most clearly when the thing possessed is folded within the natural rights of the person to physical integrity, i.e., possession of a thing becomes clearest when it is practically inseparable from my natural right to be undisturbed and protected in my own body because the thing cannot be used by another without affecting me physically. Use, especially consumptive use of food, is central to our ideas of relations to things because things literally become united with me in the process of this use. But outside consumption of food, all other kinds of uses are less and less directly resulting in unity with my right of physical integrity. Clothing and tools in-the-hand are next in order, I think, and after that, things get quite unclear. Perhaps, occupied homes/mounted animals/ridden vehicles count as a kind of super-clothing for the body’s immediate protection and sustenance.
But anything really large, especially land beyond the space that I physically occupy, is problematic. Tying a whale to a ship is really a symbolic claim to something beyond any one natural person’s capability of even long-term consumption. The problem is magnified with respect to land. Neither land at farmable scales nor whale can be enfolded into an individual’s natural right to physical integrity, like the grasp or mouth. Indeed, an individual cannot even catch a whale. He needs a ship crew, a harpooning crew, boat makers, etc.
But this is not true for a group or a nation. The nation can grasp and surround whales and land in the sense that they cannot be removed from the land without a violation of their national physical integrity because the nation or group will be destroyed.
Historically, it is fact that groups rather than individuals state the first “property” claims to dominion over lands. In sacred history, as I have already mentioned, we are told too that God distributed the lands of the world to groups, not to individuals. (De 32:8 When the Most High gave the nations their inheritance, when he divided all mankind, he set up boundaries for the peoples according to the number of the sons of Israel. )(Ac 17:26 From one man he made every nation of men, that they should inhabit the whole earth; and he determined the times set for them and the exact places where they should live. 27 God did this so that men would seek him and perhaps reach out for him and find him, though he is not far from each one of us.) The same is true of Israel, of course. The promised land was distributed, not to individuals, but to groups and individual title derived from group identity, first, in Israel and then in the tribe.
To your point, certainly, from the economic and political perspective as Marx showed, the distinction between “productive property,” which he termed “private property,” and “objects for consumption,” which he termed “personal property,” has been shown to be a distinction of cultural and historical importance. In the lawyers’ tradition, we have longer distinguished the usufruct among the various property interests, i.e. the right to the non-destructive maximally beneficial use of the property versus the mere possession or bare use of property itself or the right to exclude others from the property. But the distinction is filled with difficulty. Generally, as you observe in the case of the whale, the question of whether something is an object for consumption or production is a social rather than natural issue. The whale can be viewed as dinner or as a deteriorating productive resource whose appropriate use is to be transformed into more stable and valuable oil, corset bands and dress hoops. Equally, the historic fights between hunter-gatherer/herders and farmers over the appropriate use of the land cannot be resolved naturally because the land can be consumed directly as wild food for man and fodder for flocks or treated as a productive resource and plowed, planted. Another question has been whether infrequent low intensity use by migratory herders counts as corporate possession against the intervening continuous, sedentary and high intensity use of farmers.
So … my own sense is that the distinction between individual and group possession is the more key distinction historically and practically because the distinction between productive property and consumables is dependent on individual and group decisions about use.
Thanks again, Eric, for these very stimulating thoughts. I think we just need to have you write a follow-up post of your own here, developing some of these reflections—you’ve already written a post or two worth in these comments!
Let me take Bradford’s suggestion and make of it a formal offer. We’d be delighted to have you write a follow-up here, or, if you wish to write one on your own site instead, we would link it with recommendation and engage closely with it.