Earlier this week, two leading Catholic political bloggers, Elizabeth Stoker Bruenig and Pascal-Emmanuel Gobry (better known as Pegobry, or just PEG), engaged in a short but sharp exchange on one of my favorite subjects, property rights (see here, here, here, and here). Although I can hardly claim to be an expert on the subject, I’ve long lamented the absence of substantive discourse on the subject among political theologians and Christian ethicists, so Liz Bruenig’s recent attempts to foreground the issue have been a breath of fresh air. Pegobry, however, raised some rather important questions, or at the very least the sorts of questions that most conservatives are likely to raise, and given the frequency with which I encounter such questions, I think they deserve to be explored a bit further than they were in the inconclusive interchange.
So although I am told that a day is as a thousand years on the internet and a four-day-old discussion is too stale to bother resurrecting, I will venture some reflections of my own.
First, though, a bit of quick review for those of you just joining us. Liz Bruenig kicked things off with a little discussion of St. Augustine (of whom she is a fan and perhaps something of an expert) and legal realism, which is to say the idea that property rights are nothing more than creations of the law, and thus in principle alterable at the law’s discretion. The context for Augustine’s affirmation of legal realism that she identified was, unhappily, one of his anti-Donatist writings, in which he dismissed their complaint against the state’s confiscation of their property. She notes that Augustine was somewhat prescient here in rejecting Lockean “labor-desert” theory, which is to say the idea that property rights are created and become morally binding as the just fruits of labor. Pegobry objected, perhaps unsurprisingly, that this is precisely why conservatives object to anything like “legal realism” and insist that property rights are “sacred” and must be respected by the state, and not tampered with—legal realism encourages and justifies abominations like arbitrary state confiscation of property from people it doesn’t like. To this Ms. Bruenig replied that of course the state often does terrible and unjust things with its power to define property rights, but the fact that you don’t like that power doesn’t make it untrue. Legal realism is merely a descriptive account of how property rights are in fact generated, not a normative account of how they are generated, and the simple fact of the matter is that without the state’s determination to prevent me from taking your computer for my own purposes, your ownership of it is meaningless.
At this point Pegobry complained that Ms. Bruenig had now defined legal realism so minimalistically as to be useless. If all it means is that laws are, well, laws, and determine what will and won’t be enforced, then so what? By the same token, one could note that descriptively, the state’s determination of what counts as human life worthy of protection (slaves? the unborn? infants?) does in fact determine who gets protection, and thus perhaps who may end up dying, and thus in this somewhat perverse sense “rights to life” are generated by law. But of course the important question at hand, he insisted, is whether the law is acting rightly, which is to say whether in its legal determinations it is respecting pre-existing moral rights and duties that need to be honored. Accordingly, Pegobry challenged Ms. Bruenig to clarify whether on her view there were such moral restraints in the case of property, whether she would have any principled objection to “a total redistribution of property.” Ms. Bruenig’s response (in an addendum to her previous response) to these challenges was probably not fully satisfactory to many readers. As far as pre-existing moral constraints that should normatively guide property law, she briefly pointed back to Augustine’s view of God’s ordination of creation (which He alone truly owns) for the common use of all. The question about redistribution she dodged somewhat by saying “If a Christian community wanted to live in this way, communally, that would be fine.” This sounds like a harmonious mutual decision, like the community in Acts 4, rather than a top-down legal imposition, which is what Pegobry worries about. She concludes by explaining that the main purpose of legal realism in these discussions is simply to parry the common libertarian talking-point that taxes are a form of theft, or at least redistributive taxes are. That is certainly an assertion I have sought to debunk a number of times myself, but I wonder if Ms. Bruenig is right that it can be dismissed with a merely descriptive theory; while not technically theft, taxes or other property arrangements that are unjust might fairly be described as *like* theft.
So I take it that, at the end of this brief exchange, the fundamental conservative worries were not answered as clearly and fully as they need to be. So let me first restate those objections as clearly as possible, then attempt to clarify why at least Pegobry’s statement of them fails (though this does not mean that, suitably nuanced, the line of objection might not be more compelling, though that will mostly be a subject for another post).
The objection, then, from an intelligent conservative who avoids some of the more naïve ideas about private property rights, would run something like this:
To be sure property rights, as binding and enforceable social arrangements, depend on law. Indeed, in various areas such as intellectual property, it is difficult to see how such rights could be given any generally-agreed upon content without being created by law. However, law ought to be moral, not arbitrary. And to be moral, law ought to serve not merely utilitarian ends, doing whatever works best for the greatest number, but principles of justice, which limit in advance the range of fair and acceptable actions the law may undertake. (Never mind for now whether we construe these principles as some form of ‘natural law’ or another source of moral authority.) This is why the law cannot simply decree the death of an innocent person to satisfy the whims of a majority. This is why, to pick a more contentious example, many Christians will argue that the law cannot grant “marriage” to anyone who wants it, regardless of whether they fit the criteria for the institution. (Indeed, marriage law represents an interesting analogy on several levels to property law, inasmuch as much of what gives it its distinctive shape in particular societies, and what makes it meaningful and binding, is provided by law; but we do not thereby reduce it wholly to a creature of law.)
To be sure property is not like life; we do not come into the world with it, nor is there any natural way simply to unite it to ourselves. Nonetheless, the principles for its distribution cannot be wholly arbitrary, and they ought to have something to do with desert. In determining just property relations, states must have an eye to considerations like: who already has it (de facto)? Have they done anything to deserve having it taken away? Who has worked hard for it, and who has merely passively reaped the benefit of another’s labor? (Of course, it does not follow that the consistent application of such principles will necessarily favor the traditional property-owning class; quite the contrary.) Each generation does not have a clean slate with which they can say, “OK, who do we want to give this stuff to? Let’s redistribute it as follows…”
This, I take it, is the substance of Pegobry’s objection—if I may say so myself, a better-stated version than he himself provided. A closer look at Pegobry’s claims will, I hope, make clearer just what this sort of objection needs to deal with in order to get properly off the ground.
First, a historical point. Pegobry frankly admits his own unfamiliarity with Augustine; I am sorry to say that I am little better off myself. This is one of the reasons I am very glad that Ms. Bruenig is doing so much to disseminate a better understanding of his political thought. Unfortunately, however, Pegobry implies that, whatever Augustine may have thought regarding property and legal realism, we would do well to disregard it in favor of the medieval and post-medieval Catholic teaching on the subject:
“I find myself much more at home with what I take to be the ‘generic’ Catholic understanding, heavily influenced by Scholasticism, of private property as a kind of God-granted stewardship, which issues in both a natural right of private property and a moral duty to use this faculty in accord with the will of God.”
Presumably, in declaring himself “at home with” this understanding, Pegobry means to imply that he is quite familiar with it. And yet I must confess I am not at all sure he knows what he’s talking about. Indeed, the appeal to a “‘generic’ understanding,” with a vague nod in the direction of “Scholasticism” (isn’t Scholasticism always involved in these things, one way or another), does little to instill confidence. The first thing to say here is that there is not really a “generic” understanding—that is rarely so in the history of thought. Rather, you have the common Patristic view that private property is a dubious product of the Fall, which Christian communities ought to strive to transcend (Augustine is of course somewhat more pessimistic and “realist” on this point), then in the High and late Middle Ages, ferocious conflict (including real-world conflict) between the modified-Aristotelian Thomist view, the radical-Patristic Franciscan view, and a sort of proto-modern papalist view, with diversity increasing as we move into modernity. Even the papal encyclicals that undergird Catholic Social Teaching do not speak with one voice on the subject. Rerum Novarum is notoriously influenced by Lockean ideas, but later encyclicals have moved away from this. All of this to say that we need thorough and thoughtful wrestling with these issues nowadays, rather than blithe reassurances that there is some basic common-sense view that surely every sane person must share and that more or less settles the issue.
However, to the extent that we could speak of a “‘generic’ Catholic understanding” it would have to be that of Thomas Aquinas, whose synthesis was enormously influential on succeeding centuries and is generally given at least lipservice in Catholic treatments of the subject today, even when it is not carefully attended to. Indeed, I would hazard the claim that properly understood, the Thomist view could be taken as a rough consensus statement for most serious Christian reflection on property through the centuries.
Space cannot permit anything like a full statement of Thomas’s doctrine here, but I will say enough to try to show the nub of the problem with Pegobry’s formulation, a problem which affects his whole line of argument. He is right to highlight the theme of “God-granted stewardship” in the Thomistic understanding of private property, but just what does he mean when he says that it “issues in … a natural right of private property”? That, after all, is what this whole discussion is really about: is there such a thing, and whence does it arise?
Thomas, actually, is really not all that opaque on the question. He offers a rather clear distinction between use (usum) and administration (potestas procurandi et dispensandi). This generates two distinct sets of rights. First is the right of humankind to take, use, and enjoy the fruits of the earth. This is a natural right in the fullest sense of the term—pure and simple, everyone is born into the world with the right to take some fruit off a fruit tree if they’re hungry, just as they’re born free to speak, marry, etc. But of course, this right is common and universal, and so is not really what we would call a property right; in fact, it is kind of the opposite. It is what we could call a pre-political right, and can of course be modified some by subsequent arrangements, but is always there in the backdrop (so that Aquinas contends that in cases of necessity—if you really need that apple or that loaf of bread—this natural right reasserts itself and trumps all others).
The second is the institution of property rights, whether private or public. This is where Aquinas parts company somewhat from many of the Fathers. Whereas they asserted the primordial right of common use, and judged that only sin could account for compromising such a thing with the distinction between meum and teum, Aquinas was more Aristotelian. Even without sin, property rights might be a good and useful thing, although perhaps only sin made them necessary (this is one point where Aquinas could be a bit more clear). This was because, he deemed, a distinction between who administered what could actually help further the original natural right of common use—that is to say, by avoiding confusion and promoting a sense of personal responsibility (to use an unfortunately now-hackneyed term), property rights could actually help more effectively bring the fruits of the earth into general circulation. Thus, Aquinas could speak of property rights in this sense as natural in the sense of being not contrary to nature, or even in accord with nature, but they were not natural in the fullest sense, because they were not spontaneously present in nature, but “derivatory and secondary” (in the words of Anthony Parel), arising out of subsequent human arrangements. Conversely, although common ownership is natural in the sense that it comes first and supplies the backdrop for future ownership arrangements, it is not natural in the sense 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 natural right, but, rather, according to human agreement, which belongs to positive right, as stated above. Hence the ownership of possessions is not contrary to natural right; rather, it is an addition to natural right derived by human reason.”
Derived by human reason. According to human agreement. As John Finnis summarizes,
“The moral or juridical relationships to such an entity that we call property rights are relationships to other people. They are matters of interpersonal justice. Arguments for founding property rights on alleged ‘metaphysical’ relationships between persons and the things with which they have ‘mixed their labour’, or to which craftsmen have ‘extended their personality’, are foreign to Aquinas.”
Thus Aquinas, too, is among the legal realists. “Your list of allies grows thin,” Elrond might say to Pegobry.
This will afford us some of the needed clarity to sort through some of Pegobry’s other comments. He does not seem clear on why it is that property rights should be subject to “legal realism” in a way any different from other rights that we hold dear. For instance, he describes Ms. Bruenig’s position as “the position that human beings have no intrinsic rights (at least in the domain of property, although why this should be true about property and not other rights is unclear) that human institutions and laws are bound by higher laws to respect, and that such rights are “totally” fictitious creations of the sovereign.” Later he uses the analogy of the right to life, and the state’s responsibility to protect it, and he also appeals to “the declaration of the Ecumenical Council of Vatican II that every human being, as an image-bearer of God, has transcendent dignity, one consequence of which is the existence of natural rights that human institutions are bound by divine law to respect.” He also asks,
“is it correct to say that people have a right to private property in the same way that we say they have a right to speak freely, or assemble peaceably, or any of those rights the recognition of which we typically take to be a mark of civilization? That is to say, rights, that (conceptually rather than historically) ‘preexist’ the state in the sense that the state is duty-bound to respect them not on grounds of expediency but on grounds of higher law.”
This is slippery stuff. In particular, one worries about the invocation of “those rights the recognition of which we typically take to be a mark of civilization,” given the way in which human rights discourse has been used in increasingly imperialistic fashion by national and international authorities. But leaving those aside, what about the specific rights here asserted—life, liberty of speech, liberty of assembly? All of these we might quite justly associate with the “transcendent dignity” that we have as “image-bearers of God,” because they all seem to essential to a basic realization of our human nature. Obviously we were born into the world for the purpose of living, and without that right we have no others. And rational thought, and speech to share that thought, are essential to what it means to be human. Likewise, as fundamentally social animals, we must be able to assemble together with others in pursuit of common ends. For the state to legislate against such rights in general would indeed be intrinsically unjust, a violation of natural rights, because such rights arise not out of means to an end, but as part of the end of being human.
But is there anything equivalent in the neighborhood of property rights? Well only, it would appear, in the domain of common use. This, Aquinas is clear, is a fundamental right of being human, because without it, without the power to appropriate to our use such fruits of the earth as we need for health and flourishing, we could not live at all. And thus it is the case that there are natural, intrinsic, pre-political rights pertaining to the “transcendent dignity” of human beings as image-bearers which states are bound, as a matter of principle, to respect. The problem is they are not the rights of existing de facto property owners, or would-be Lockean property-acquirers, but rights prior to these, which will condition and limit these. This, presumably, is what Ms. Bruenig is up to when she explains that the normative feature in the property picture is to “make sure the poor are supported.” (While she follows this with, “Because Christ commands it,” it is clear more generally from her exposition of Augustine that it is because God created the world and intends it for the use of all, as Aquinas also argued.)
Thus, to Pegobry’s insistent question as to whether, according to Ms. Bruenig, “under correct Christian ethics, all property is contingent and rights of property . . . have only instrumental and not intrinsic value,” it must be answered, in Thomistic terms at least, “Yes, instrumental to the service of the common use of humankind.” Indeed, it is difficult to conceive, within such a framework, of just what sort of “intrinsic value” such rights could have.
However, this is not to say that Pegobry’s worries are entirely unreasonable. In fact, the quest to identify an “intrinsic value” to private property ownership, more directly rooted in human nature, is not necessarily a fool’s errand. For instance, we might well argue that the fundamental value of human freedom requires a certain self-sufficiency which requires, or at least is best secured by, property rights. Or with a bit more sophistication, we might say that freedom in fact requires responsibility to be truly realized, or in more Scriptural terms, that taking dominion and exercising stewardship is part of what it means to bear God’s image, and thus something like private property ownership is naturally necessary for human beings, and must be protected by law as a pre-political right. Hegel and Hilaire Belloc are two have offered something like this sort of reasoning. The problem, as Jeremy Waldron has masterfully shown in The Right to Private Property, is that these arguments as well argue for a re-distribution of property, indeed, more dramatically so than the Thomist—they compel the conclusion that property is something that everyone should have, not merely enough for sustenance, but for freedom and self-realization.
What we really would need, then, is an argument that the fruit of labor must not be separated from the labor, that just as the children that one brings into the world, are, by natural right, your children, not the state’s to do with as it wishes, so the products that you create or enrich by your labor are justly yours. Of course, the analogy conceals the fact that the products of labor just don’t seem to have a metaphysical relationship to labor in the way that children do to conception (not to mention the fact that in laboring, one must make use of much more pre-existing material). Unless a convincing metaphysical argument can be brought, then (and while I am not wholly dismissive of the attempt, most existing attempts have been quite unsatisfactory), then the analogy really falls back on some version of desert theory. There are of course very substantial problems with building a property distribution on desert theory, as not merely Liz, but Matt Bruenig has argued. However, this does not mean that relative assessments of desert cannot and should not play any role in legal determinations of just property relations. It is this intuition—that it would be unjust for the law to suddenly deprive me of something I have worked hard for (assumign I’ve worked justly) even for good utilitarian ends—that drives Pegobry’s (and most conservatives’) worry about legal realism, and redistributional policies based on it. And while I would be rash to make any promises at this juncture, I would hope to explore this further in a subsequent post or two, to outline what a good conservative version of legal realism might look like.
 See for instance Anton Herman Chroust and Robert J Affeldt, “The Problem of Private Property According to St. Thomas Aquinas,” Marquette Law Review 34:3 (1950), 155-75.
 See Joan Lockwood O’Donovan, “Christian Platonism and Non-proprietary Community,” in Bonds of Imperfection (Grand Rapids: Eerdmans, 2003), 97-120 for a particularly insightful discussion.
 Matthew Habiger, Papal Teaching on Private Property, 1891 to 1981 (Lanham, Md.: University Press of America, 1990), provides a useful, though not altogether reliable, discussion.
 See ST II-II q. 66 a. 1 for Aquinas’s exposition of this right.
 This occupies Aquinas in ST II q. 66 a. 2.
 ST II-II q. 66 a. 2 ad 1.
 John Finnis, Aquinas : Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 189.
 Anthony Parel notes that for Aquinas, private property is “derivatory and secondary” right, with “the obligation to realize the primary purpose of property, namely, use,” so that, “if there is conflict between use and ownership, there was no doubt in Aquinas’ mind which should prevail.” (“Aquinas’ Theory of Property,” in Theories of Property, ed. Anthony Parel and Thomas Flanagan [Waterloo, ON: Wilfrid Laurier University Press, 1979], 96.)
One thought on “Private Property, Aquinas, and Legal Realism”