Pretenses of Loyalty Review

A couple weeks ago I interacted here with John Perry’s remarkable recent book Pretenses of Loyalty, confining myself primarily to engaging with the third and fourth chapters, with their remarkable relevance (unnoticed by Perry) with sixteenth century debates between Richard Hooker and the Puritans.  For those interested in hearing about the rest of the book, my full, more systematic review of the book will appear in four installments over at the blog for the journal Political Theology over the next week or so.  Part 1 has just been posted.

Pretenses of Loyalty and Things Indifferent

John Perry’s remarkable recent book, Pretenses of Loyalty: Locke, Liberal Theory, and American Political Theology draws attention with remarkable precision and clarity to the fundamental problem of early modern political theology—what remains, in fact, the central and recurrent problem in defining the relation of religion and politics, church and state.  How are conflicting loyalties to be harmonized?  How are believers to be sure that their allegiance to God will not conflict with their responsibility to serve the common good?   

Perry’s thesis is quite simple, and repeated so frequently throughout his book that the reader cannot fail to grasp it and never loses track of it as the orientating point of the narrative and argument.  Perry argues that modern liberal theory, following (as it supposes) Locke, has been preoccupied with the idea that it is possible to delineate the just bounds of politics and religion, of public and private claims.  The hostilities between these two in principle should be readily resolvable.  And yet, no matter how hard liberal theorists try, the tensions continue to elude resolution.  Why?  Perry argues that modern liberal theorists have in fact ignored an important part of Locke’s project.  Although Locke spoke of the need to “distinguish exactly” between the business of government and religion, he did not think it was that simple.  Locke himself realized what recent communitarian theorists have come to realize; that there is in fact a clash of loyalties going on.  Loyalty to God makes claims on people that appear to contradict the claims that loyalty to the common good makes upon them.  The first thing that must be achieved, then, is a harmonization of loyalties, which, if it is to be persuasive for religious believers, must have a theological foundation.  Locke understood that if he was going to convince Protestants (of which he was one) that obeying God was not in conflict with their duty to be good citizens, he would have to provide a theological argument about what obeying God entailed, rightly understood.  


Perry goes on to do a beautiful job of ascertaining and outlining the theological shape of Locke’s political argument—in his early work and finally in his famous Letter concerning Toleration.  This book’s tightness of focus, however, is its weakness as well as its strength.  What Perry does not sufficiently realize is that the set of issues that Locke was wrestling with and seeking to resolve were nothing new; on the contrary, Locke was simply the latest dialogue partner in a discussion going back to the Reformation.  It would be false to accuse Perry of wholesale ignorance on this front, though it is common enough in literature on Locke.  Perry does indeed recognize that there is a backstory, and that Locke must be read against that backstory; it’s just that he doesn’t know that backstory well enough to realize just how important it actually is.  This becomes particularly clear when he comes to discuss the issue of adiaphora, which he sees as being central to Locke’s early work, The First Tract on Government. 

Although he has briefly treated the issue of toleration as far back as Calvin, his discussion of debates over adiaphora begins after the Restoration (1660).  After the Restoration, the Anglicans were keen to crack down on nonconformity, and their argument centered around the concept of adiaphora, “matters indifferent to salvation”; such matters fell legitimately under the oversight of the civil authorities.  Now, Perry notes that both Anglicans and Puritans believed that there were some things in themselves indifferent, and both were keen to avoid falling into superstition in thier use of adiaphorous rites. “However, they disagreed about what sort of rites crossed the line into legalism or superstition and whether practices inherently indifferent could be made conditionally essential. For example, could the bishop or ruler require kneeling for communion as a practical matter?”  Was it legitimate for things in themselves indifferent to become necessary by virtue of the command of an authority?  The nonconfomist Edward Bagshaw argued in his The Great Question Concerning Things Indifferent that it was not.  

Bagshaw argues for the principle of adiaphora on the standard Reformation bases of sola gratia and sola fide—works must not be necessary to salvation.  He goes on to distinguish, more sharply and clearly perhaps than most nonconformists, but far from uniquely, “between two types of indifferent acts: on the one hand, acts that are ‘purely’ indifferent, such as time and place, which are “so very indifferent” that he does not concern himself with them, and on the other hand, acts that would otherwise be indifferent ‘but by abuse have become occasions of superstition, such as are, bowing at the name of Jesus, the [sign of ] the cross in baptism, pictures in churches, surplices in preaching, kneeling at the sacrament.’”  

 Now, Perry goes on to say that Bagshaw went on to make a unique new argument:

“Part of what makes Bagshaw unique is how he argues against uniformity not strictly on the grounds of freedom of practice but by claiming that once an act is required, it automatically becomes so tainted by superstition that it therefore moves from being indifferent to forbidden. An act is indifferent until it is required, in which case it becomes prohibited. This logic is plain where he writes, ‘So long as a thing is left Indifferent, though there be some suspicion of superstition in it, we may lawfully practice it, as Paul did circumcision. But when any shall take upon them to make it Necessary then the thing so imposed presently loses not its Liberty only, but likewise its Lawfulness; and we may not without breach of the Apostles’ Precept submit to it. So long as there is no rule as to whether I must kneel to receive communion, I may kneel or stand. However, once kneeling is required, I must stand, lest my obedience to the rule become a “work of the law.”’”

In other words, adiaphora are not merely those things which have as a matter of fact been left free to individual conscience, but are such that they must continue to be left free.  Now, this is all very fascinating; the problem is that it is not remotely new.  The same arguments can be seen in the exact same context (the imposition of the Book of Common Prayer in the Church of England) a century before.  Nor are they a uniquely English problem.  They are a Protestant problem.  Wherever the doctrine of Christian liberty was preached, it engendered two rival interpretations: the one just mentioned, and the view that adiaphora have been left free to human decision, which means that they may be disposed of by human authority, so as not to leave the individual free with respect to them any longer.  One finds Bagshaw’s argument spelled out at least as early as Matthias Flacius’s 1548 On True and False Adiaphora.  

 Because Perry does not realize how far back this particular debate goes, neither does he realize the extent to which Locke’s response to it (for Locke was originally an apologist for conformity and uniformity in religion) is part of an ongoing tradition of Protestant political theology.  So Perry writes,

“What set Locke’s argument apart from others that supported uniformity in adiaphora is how thoroughly political it is. It is not an argument that uniformity of practice most pleases God but that uniformity most inclines to civil peace. He naturally offers supporting arguments to show that there is no theological obstacle to uniformity, but these are decisively secondary.” 

He then quotes Jacqueline Rose (who, from her article, appears to have a much more nuanced understanding of debates about adiaphora than Perry appears to):

“What has vanished [from the debate when we turn to] the Tracts is the concept of any distinction between ‘indifferent things of civil as well as religious concernment’…Locke was the sole writer in this Restoration period who sought to provide an explicit theory behind the analogy [of civil and religious law] rather than merely employing it.”

Now perhaps Locke really is the sole writer of the Restoration period to do so, but he is merely treading ground that Hooker and others had not merely trodden, but virtually paved before him.  In the 16th century, conformists had repeatedly understood the question of adiaphora to be a political one, and had argued for the parallel between indifferent civil actions and indifferent religious actions, and the need for order and decency in both.  It was because indifferent religious actions could in fact be understood as a kind of civil action that they could be regulated by civil authority for the sake of civil peace without any religious claim being thereby made.  In most writers, admittedly, this argument was underdeveloped, but it is developed with elaborate systematic support by Hooker.

It is on the basis of this understanding of adiaphora that the early Locke opposes toleration.  Again, Perry finds it significant that toleration is opposed here not on theological grounds—because God cannot abide heretics, or whatever—but on civil grounds: if religious conformity is not insisted upon in things that are indifferent, and hence the proper province of the civil magistrate, then strife and disorder will prevail.  “He professes to be a great lover of liberty but concedes, ‘I find that a general freedom is but a general bondage.’ Without uniformity in adiaphora, the only liberty we would achieve is ‘liberty for contention, censure and persecution [turning loose] the tyranny of religious rage; were every indifferent thing left unlimited nothing would be lawful.’”  In other words, precisely by legislating conformity in adiaphora, the authorities ensure that they remain adiaphora.  If Puritans were left free to decide about them as they chose, they would become bones of contention, as different parties argued for stricter or looser practice and accused the other of being unbiblical or superstitious, etc.  This fear was clearly not without good cause, given the tendency of the Puritan left (in England, Scotland, and America) to splinter into ever-stricter sects.  Locke also argues that those with other seditious agendas will use religious scruples as the basis for their protest (as indeed we see today with the way Tea Party Christians use religious rhetoric to oppose political and economic policies they disagree with and endorse tax rebellion).  Accordingly, Locke argues, the ruler has legitimate authority to command the outward actions of his subjects in all things indifferent; he cannot command their hearts, he cannot trample on the realm of things essential to salvation.  The only question, then, is where we draw the line of what constitutes adiaphora.  Hobbes could, with reasonable Protestant precedents behind him (certain statements of Luther, incidentally), count anything beyond faith alone adiaphorous; Hooker was rather more careful and nuanced.  Locke, in any case, did not have to deal with this question in the Tract, because Bagshaw had granted the matters in dispute to be adiaphorous.


Now, Perry goes on to show how the transition from Locke’s early anti-toleration to his later pro-toleration position is thus smoother than one would expect.  Locke never argues that toleration is illegitimate in principle, but that, empirically speaking, too much discord and rebellion will ensue if the magistrate does not keep tight reins on religious practice in his realm.  Could Locke be shown that it was possible for sects differing in their practice of adiaphora to coexist peacefully with one another, and in subordination to their ruler on all other matters, he would be fine with toleration.  As it turns out, he is so convinced, by a series of circumstances, over the next twenty years; indeed, he comes to the conclusion (which we almost all share today) that so hard do people find it to treat adiaphora as genuinely indifferent, so earnestly do they cling to their convictions regarding them, that enforced conformity creates more strife than it solves.  So he reaches the new conclusion that government can, indeed ought, to tolerate diversity in religious adiaphora; and since indeed this was the only aspect of religion over which government could have ever claimed jurisdiction (since it cannot rule the realm of faith), Locke now argues that government should stay out of all matters that are objects of religious loyalty. 

To make this argument, though, as Perry shows, Locke must make another theological argument, not dissimilar in overall shape to his original argument.  For how can believers be shown that their religious loyalty, their allegiance to God, does not require them to be intolerant?  The objective of his argument now, then, is not to establish an area of adiaphora over which Christians should let the authorities make decisions, but to establish an area of adiaphora over which they should be happy to let other individuals and communities make their own decisions.  As just seen, Locke originally believed, as did many others of his time and before him, that strife was more likely to ensue from people being unable to tolerate their neighbors’ diverse religious practices than from the government simply opting not to tolerate any diversity.  Now he has reached the opposite conclusion, but still recognizes there is a potential for strife that must be defused.  He must convince believers that proper loyalty to God does not entail attempting to vindicate his honor by opposing or attacking all those deemed to be unfaithful.  God asks us, rather, to exercise charity, and reserves vengeance to himself.  From this perspective, even the core teachings of the Christian faith are adiaphora—not when it comes to myself, for my own salvation is at stake in my beliefs, but when it comes to other people.  Other people’s beliefs and practices need have no effect on my own salvation, therefore there is no reason why I should be bothered about them one way or another.  Needless to say, Locke’s argument at this point entails a massive break from the kind of corporate, communal mindset that had continued to dominate even most Protestants up through the early modern period.  Where Calvin would have feared the judgment that God would send down on the community as a whole for its toleration of godlessness in its midst, Locke offers us a hyper-Protestant “every man for himself” political theology.  

Of course, allowing toleration of religious adiaphora requires Locke to come up with some principle for determining the realm of strictly civil concern over which the monarch still has the right to command, and differentiating clearly from legitimate religious obligation. (E.g., religious obligation cannot be claimed as a basis for tax evasion.)  It was his earlier conviction that such a criterion was impossible that led him to argue for civil control over all adiaphora.  He accomplishes this by another theological argument and by a philosophical argument.  The theological argument involves radicalizing early Protestant emphases on the invisibility, inwardness, and otherworldliness of the order of salvation, so that he will deny that the Church has any this-worldly ends or requires this-worldly means.  The philosophical argument is his rejection of the natural law tradition, which Hooker would have used to determine the proper scope of civil jurisdiction, and replacement of it with his massively influential doctrine of natural rights.  The task of civil government, then, can now be understood as oriented solely toward the securing and protecting of “natural rights,” rather than the promotion of the common good more generally, which would naturally include religious matters.


The last couple paragraphs have been an extremely cursory overview of what Locke is up to in his Letter concerning Toleration, which is analyzed with great care and clarity by Perry in chapter five of his book.  Perry does an excellent job of flagging the tensions and weaknesses in Locke’s argument, and the extent to which it depends upon sharing his theological premises.  It is this fact, Perry argues, that accounts for the ongoing struggles of Lockean liberalism to achieve a harmony of religion and politics.  Locke’s solution required a theological argument, specifically a very Protestant kind of theological argument, in order to render it coherent.  That worked fine, as it turned out, because his original audience by and large shared the theological premises.  But clearly, the solution, although intended for a situation of pluralism, finds itself subject to diminishing returns the more pluralist a setting it finds itself in.  This problem has been compounded by the fact that modern theorists have forgotten that there was a theological argument in back of Locke’s political philosophy to begin with.  Perry traces all this in Part III of his book, “John Locke’s America.”

But for now, I will just fast-forward to the conclusion, where Perry offers some tentative (and rather Hookerian, I would say) proposals—not solutions, mind you—as to how to address these problems.  

Perry suggests that liberalism has developed too great a skepticism of rhetoric, of persuasive speech ordered toward the particular situation and presuppositions of one’s audience.  Liberal public discourse must neutralize difference in advance, and thus argue from what claims to be a mere abstract rationality that anyone should share.  If they do not in fact share it, then we’re suddenly at an impasse—our opponent must just be being irrational, and the calm reasoned discussion degenerates into a shouting match.  What we need is a recognition that we do not in fact all share the same presuppositions of what is to count as rational, what ends are appropriate for human beings and for society.  We must regain faith in the possibility of public debates in which such conflicting visions of the good are made explicit, faith that the disagreements need not remain wholly incommensurable.  This requires, in the end, faith in the natural virtues—confidence that, outside of Christian belief, we will find fellow citizens imbued with a certain sense of virtue and a shared desire for truth.  And it requires a willingness to accept the penultimacy of political life; the renunciation of the quest for a final solution like Locke’s that would establish the “just bounds” of rival loyalties for all time.

Tetzel on Craigslist: Commodification and the Demise of the Commons

In his incisive and thought-provoking new book, What Money Can’t Buy: The Moral Limits of Markets, renowned political philosopher Michael Sandel invites us to step back and take stock of the results of the rapid expansion of market logic into every area of life that the last generation has witnessed.  Economics has transformed itself from a discipline concerned with the production, exchange, and allocation of material goods and services to a master-science claiming to describe the logic of all human social relations in terms of cost-benefit analyses.  In tandem with this theoretical shift has come the increasing subjection of areas of life once governed by non-market norms to the logic of free exchange driven by supply and demand.  Many today, including (perhaps especially?) many Christians may have difficulty in seeing what is wrong with this trajectory—after all, doesn’t this represent the triumph of free, voluntary social relations over against coercive, top-down ones (for a critique of this gross oversimplification, see here)? 

 Inasmuch as the logic of the market, though, is amoral and nonjudgmental—it doesn’t matter what you want and why as long as you’re willing to pay for it—Christians should be deeply concerned, and should heed Sandel’s call to bring morality back into the picture, asking about the moral consequences of subjecting more and more of our lives to the logic of exchange (especially as Sandel himself does not provide a theological basis for this moral concern).  Accordingly, I want to reflect here on the first set of phenomena he examines, “Jumping the Queue,” from a more explicitly theological standpoint.


In his first chapter, Sandel surveys at a variety of cases, around the world, in which the “ethic of the queue”—first come, first served—has been replaced by the “ethic of the market.”  The examples range from the relatively innocuous (the option to pay extra for a “fast track” pass at an amusement park) to the somewhat more troubling (the option for solo drivers to pay extra to use the carpool fast lane in crowded cities) to the downright dirty (lobbyists paying homeless people to stand in line for them overnight so they can be assured a place in Congressional hearings).  

From the standpoint of the Christian ethical tradition, these developments might be described as a “demise of the commons.”  As I have discussed at length on this blog before, the Christian ethical tradition long insisted on the priority of common use over private property.  That didn’t mean that private property was unjustified, but it meant that it did have to be justified.  It wasn’t a self-evident, self-justifying fixture of the natural order.  For the Christian, God has created the world for the use of all his creatures, and above all, for the use of mankind.  Since all men are created equal, the world’s resources are intended to provide equally for the needs of all.  As an institution, then, private property is to be justified on the basis that it can most effectively facilitate the use of the earth to meet the needs of all.  This being the case, any given holder of private property possesses his title on the moral condition that it be used not for his mere private benefit, but for the community at large.  The ongoing commitment to common use may be demonstrated in a private property economy in at least three ways: 1) by the use of private property in such a way that its fruits accrue to the benefits of others—preeminently employees and customers; that is to say, if I am the proud possessor of an apple orchard, I can ensure that the orchard serves common use by paying the apple-pickers a good wage and by selling the produce on to customers at a just price—but not, say, by intentionally allowing half the apples to rot so as to drive up the price of the others and make a better profit; 2) by the redistribution of the profits of private property to society at large, or to the needy—this can occur through taxation, or through voluntary giving to charity, or both; 3) by the preservation of certain areas—whether physical spaces, particular resources or services, or kinds of social relations—from private appropriation, maintaining them as common resources which everyone can use within the constraints of certain rules of fairness (rivers and oceans, for instance, are generally treated this way).  

 A good economy will combine all three.  The second, I would suggest, is the worst, because it does not necessarily challenge the logic of private right—you can do whatever you want with your property, and make as much money as you want, just share a little of your plunder with the rest of us when you’re done, will you?  When voluntary charity is the form of redistribution, the selfish logic can in fact be reinforced, as the giver thinks of himself as a magnanimous benefactor sharing from what is rightfully his alone, rather than someone recognizing the claims of others on the fruits of the earth.  Nonetheless, society today favors the second most of all, whether in its coercive forms (as the left prefers) or its voluntary (as the right prefers), because it is the least intrusive on the logic of private possession.  The third used to be recognized in many ways and institutions throughout society, but these are being steadily eroded.  Sandel’s examples draw particular attention to this phenomenon, particularly notable in the practice of ticket scalping for free public events or services (in China, scalpers wait in line for $2 doctor-appointment tickets, and then sell them to the desperately ill for much higher prices; in New York, free Shakespeare in the Park community theatre tickets are resold on Craigslist for $125).  Deeming such public services inefficient, we increasingly prefer to withdraw them from the sphere of common use and auction them off to the highest bidder.  Perhaps this tendency is an inevitable result of the Lockean logic within which we have long justified private property.  For Locke, private property exists not as a means to common use, but as an extension of our right of self-possession.  We have an inalienable right to ourselves and our own actions; therefore, why not to those things with which we have “mixed” ourselves in the form of our labor?  A free community theatre presents itself as the possession of the whole public, which we are free to come and share in, but which we cannot simply appropriate and make it our own.  But if Locke is right, why not?  My money, as the product of my labor, is the extension of myself, and there is no reason to appropriate to my own exclusive use whatever my money can buy, whether it be the fast lane or a ticket to a papal Mass ($200 on Craigslist for Benedict XVI’s first visit to the States).


In embracing this logic, and asking, “Where’s the harm?” Protestants are forgetting their theological heritage.  After all, more than anything else, the Reformation was a rejection of the commodification of religion, the subjection of God’s grace to the logic of exchange and private acquisition.  Late medieval Catholicism, after all, did a booming trade in souls and spiritual benefits.  Indeed, the phenomena of “jumping the queue” which Sandel documents has its precise complement in the indulgence trade which sprung up in the late Middle Ages, and the many other ways by which those willing to pay could speed their souls to heaven—almsgiving, funding private masses, even hiring surrogates to fight in a crusade.  The rich were able to buy a fast-pass to heaven, to “jump the queue” of purgatory.  Why does this trouble us?  Well, the issue of inequality, as I have just hinted, is obviously part of the problem, and Luther’s war against indulgences was motivated in large part by his anger at the oppression of the poor it entailed.  The rich nobleman, with a modest outlay, could pave his golden highway to heaven without great difficulty, while the mass of poor peasants felt shut out of the kingdom, scrimping and saving their meager resources to purchase indulgences.  Sandel, of course, draws attention to the same problem of inequality in the phenomena he looks at.  The queue is the great equalizer.  The richest must wait as long as the poorest to go through security at the airport.  The poorest has just as much opportunity to see Shakespeare in the Park as the richest.  Where the ethic of the queue dominates, income inequality is not a major issue, because the poor man’s lower income does not bar him from access.  He has rights of common use.  But the more the ethic of the queue is replaced with the ethic of the market, the greater the benefits of the rich.

To apply this logic to salvation, as the late medieval Church did, was to utterly corrupt the grace of God.  The Christian faith is not a private possession to be bought and sold.  God is not a marketable commodity.  In response, Luther preached a spiritual economy of free grace, of a great common spiritual possession that we were invited to enter into and share in.  Just as the physical world was created for the common use of mankind, not for the purpose of being parceled off to the highest bidder, so our heavenly inheritance was a shared possession to which we were given a birthright by the grace of Jesus Christ, not a store of merit to be purchased by those who could afford it.  

But as this picture shows, the problem is not just inequality.  Conservatives, indeed, would reject Sandel’s concern about inequality and would defend the onward march of commodification on the basis that we live in a meritocracy, that the rich are rich because they’ve earned it, and the poor are poor because they haven’t.  Everyone has, in principle, an equal chance to get those Shakespeare in the Park tickets even if they cost $125, because everyone has an equal chance to make that money, if they’re just willing to sweat and toil enough for their slice of the pie.  Let’s ignore for now how little this picture resembles reality.  The problem is, as Sandel argues, that more than just inequality is at stake.  Even if everyone had equal opportunity to buy and sell children, for example, doesn’t mean they should.  Some things simply shouldn’t be treated as commodities, because this flies in the face of their proper nature, corrupting the way we view them.  Children are an obvious and extreme example, but perhaps, he suggests, the same concern applies even to community theatre or papal masses.  Some things lose their real value when we try to put an exchange value on them.

Again, the case of Luther’s protest is instructive.  Inequality was not the only problem with the late medieval religious economy.  After all, you didn’t have to be rich.  It was handy to be rich, because then you could get the benefits without working; but if you were poor, you could still get in the fast lane to heaven too—if you worked hard enough: fasting, praying, pilgrimage, deeds of charity, rituals, etc.  Ultimately, the Church could counter, it was a meritocracy, not an aristocracy.  But that was precisely the problem.  Luther understood that this corrupted the whole nature of what was on offer.  The favor of God wasn’t something you worked for, but something you were freely given.  It was something that belonged to you by virtue of being in the family of God—in Christ, we are sons and fellow-heirs, not hired laborers trying to earn our keep.  


Perhaps by thinking through the theological implications of how the logic of exchange corrupts our relationship with God, privatizing us into self-interested agents, we may gain insight into how the logic of exchange, when extended beyond its proper boundaries can tend to corrupt our human relationships, substituting the agenda of acquisition for the agenda of participation.  


Addendum: An additional thought—lurking behind all this is the question of plenitude vs. scarcity.  That, of course, is the major disanalogy between what Sandel is talking about and what Luther was dealing with.  God’s grace really is infinite, which is why it’s so wrong to treat it as a finite commodity to be apportioned out, whereas Chinese medical appointment tickets are genuinely finite.  Not only do you not have to pay for Jesus, you don’t have to stand in line for him either.  There is no limit on how many people can participate in the common good that is God’ s grace, but there is a limit to how many people can participate in the common good that is Shakespeare in the Park. It is the scarcity of something that convinces economists that it should be apportioned by market mechanisms.  Of course, I think that it is precisely our sense that certain things should not be scarce, should be treated as unlimited goods, that in many cases informs our sense that it is wrong to pay for them.  Is this just self-delusion, trying to pretend that things aren’t scarce when they are?  Or ought we to cultivate such an attitude?  To what extent is the perception of scarcity self-fulfilling?  All such questions I shall merely raise for now, not attempt to answer.

Justifying Private Property (The Problem of Private Property, Pt. 6)

I will warn you–this post is a doozy.  Even by the preposterously lengthy standards of my posts for the past three weeks or so.  But as thoroughness is intrinsic to what I’m trying to do here, I’m not sure of any way around it.  The long and arduous trek, however, does yield some real fruit at the end (or at least I think it does…it’s quite possible I’ve taken a wrong turn on the way there, in which case the fruit will probably end up being rotten, and I rely on any readers to tell me if this is so).  If you’re the impatient sort, you could just scroll to the bottom for the interesting bits, and see if they make any sense out of context.

Having explored in the last segment a range of possible accounts of the origin of private property, I will here attempt to categorize the different kinds of justification arguments for private property.  Or perhaps a better way of putting it would be to say that I will survey different answers to the question, “What is the ethical status of private property?”  I will look at nine answers, each of which, I expect, has actually been espoused by a range of thinkers in history; although my grasp of the history is too poor to spell out examples properly, I will try to provide some indications where possible.  Also, there are several points at which the following taxonomy overlaps with or is susceptible of further sub-categorization in terms of the taxonomy I gave in the previous segment; I will try to take note of these connections at important points.

The classification here will be simpler than that of the previous post, with five main answers, two of which admit of three important subdivisions.  So, what is the intrinsic ethical status of private property?


The first and simplest answer is to refuse the question, to insist (1) that private property is an amoral institution, that the decision about what kind of property regime to enact must be based, if anything, on purely utilitarian or pragmatic considerations.  Private property can on this account never be more than a social construction, which human beings may introduce if they expect to gain more benefit from it, or abandon it if they see fit; and whatever they decide, no one can object on ethical grounds.  Historically, this would have been a very unusual answer indeed, and one that no serious political theorist (except perhaps the likes of Machiavelli and Hobbes).  However, in modern times, with the breakdown of Christian and natural law ethics, utilitarianism and pragmatism have gained the ascendancy in most of ethical discourse, including property rights.  I’m inclined to say that the influence of Locke and our greedy desire to claim as high a status for “sacred” property rights as possible has prevented such amoralism from gaining as much influence in the issue of property as in most other questions, even among professional ethicists.  A majority still want to claim some intrinsic ethical status for private property, but not a large majority.


If we want, then, to attach an intrinsic ethical status to private property, the two most obvious are (2) to say that private property is simply wicked, or (3) to say that it is directly ordained and positively commanded by God, so that its absence is simply wicked.  These opposite extremes are fairly unusual, both historically and on the contemporary scene.  Regarding the former, Proudhon is probably its most notorious exponent, with his famous declaration that “property is theft,” a conviction shared by a number of modern communistic utopians (though not, I would venture, a large number; more have been historical materialists, like Marx himself, who considered private property to be a stage that must be transcended, and thus more obsolete than evil per se).   There have always been occasional communistic movements that have preached the absolute evil of private property, particularly in Christian history, but they have rarely gotten very far.  The latter extreme, of directly ordained private property, while rhetorically fairly common in our day and age among what I call “divine right capitalists” is, I think rarely seriously advocated.  To make this claim (at least in the sense I intend here), requires that one understand private property as having begun at creation, which as I explored in my previous post on property, is actually a rather difficult claim to coherently maintain.  This is quite distinct, I think, from arguing that private property was a natural, even a necessary, development within history.  We can make this claim and understand it to include some kind of divine authorization, but if we do, we are granting that private property had to come into being; it was not, as it were, part of what God looked down upon on the sixth day and said “it is very good.”


If we deny these two extremes, and that private property is simply amoral, we are left with a whole range of potentially viable options, in which private property is (or may be) legitimate, but is not self-authenticatingly so.  These can be grouped under two main headings: (4) “natural” (meaning here prelapsarian), and (5) “unnatural” (meaning here postlapsarian).  The term “unnatural” will require some brief elucidation before I continue.  I do not mean thereby “wrong”–in fact, some options I will explore under “unnatural” would hold PP to be positively right for us.  However, whereas “natural” understandings of PP regard it as a development that could or should lawfully have happened in man’s created state of innocence, “unnatural” understandings portray it as a development necessitated or caused by man’s fall into sinfulness.  This distinction runs very deep in the Christian ethical tradition, and parallels a similar (and in many ways, intimately related) disagreement over whether political authority would have existed in a state of innocence or only after the fall.  Clearly, a great deal hinges on the decision between these two main options; just as much, however, hinges on the decision between the various sub-options of each, to which we shall now turn.


So, if we take route (4) and say that private property is “natural,” what are we saying?  We are saying that it is part of what has traditionally been called “the natural law”–it is part of how humans are supposed, or at any rate allowed, to live; it is the proper, or at any rate a legitimate realization of man’s nature.  This category can make sense either in Christian or non-Christian conceptions, though clearly a Christian conception can make greater sense out of the category.  For a Christian, to say that private property is “natural” is to say that it was part of God’s preceptive will for mankind, or at any rate within the range of that will.  

Now you will notice already that I keep qualifying with “at any rate”–this shows you that I shall intend to show that “natural” does not necessarily mean commanded.  In his discussion of the “law of reason” (his term for the natural law), Richard Hooker argues that all things are not necessarily good or evil simpliciter–for “in goodnes…there is a latitude or extent, whereby it commeth to passe that even of good actions some are better then other some, whereas otherwise one man could not excell another.”  Hooker distinguishes between three ways in which the law of reason can bind, and I have adopted his threefold distinction as eminently useful for the task at hand.  The law of reason “is either mandatory, shewing what must be doone; or els permissive, declaring onely what may bee done; or thirdly admonitorie, opening what is the most convenient for us to doe.”  (I shall change the order in my discussion, treating the admonitory before the permissive).  The first applies in cases of simple good and evil–there is one thing that must be done, and to not do it would be evil; or there is one thing that must not be done, and to do it would be evil–these are moral absolutes like “thou shalt not murder.”  The second (in my order)–the admonitory–applies in cases where of various possible goods, one is exhorted to choose the most good; failure to do so may be blameworthy in some respect, but not altogether so.  Examples would be many decisions in parenting–questions of how to educate or discipline your child for instance–where there might be a best way to do it without all other ways being thereby wrong.  The third–the permissive–applies in cases where of many evils, we are allowed to choose the least evil, and not to be blamed therein.  An example might be killing in self-defence.  To kill, we might say, is never good, and yet in certain circumstances, it may be permitted to prevent the worse evil of one’s own innocent death.  (Obviously, this example is highly-disputed territory; I merely provide it as an example of how the logic of a permissive law of reason might work.)


If we apply this general paradigm to the question of property, what do we have?

Option 4A: Private property is mandated–although in the beginning, all things are common, this is merely a negative commonality (see previous PP post), and humans are required to realize the proper form of their social nature by developing private property relations.  A failure to do so would be unnatural, unsound, and wrong.

Option 4B: Private property is advisable–in the beginning, all things are common (whether negatively or positively construed), and it could remain so, but on the whole, the goods of mankind and the goods of creation are probably best to be accomplished by a private administration of property, so that a failure to so arrange things would be imprudent and likely blameworthy.

Option 4C: Private property is permitted–in the beginning, all things were common (again, either negatively or positively construed), but the inconveniences attending this arrangement are such that in many cases it would make more sense to enter into private property arrangements, so that one is not blameworthy for undertaking a private property distribution.  This is not in itself good, but it may be so as an alternative to the problems that might otherwise arise–as the “least evil” option.

Now, it is worth noting right away that Option 4C is a somewhat unstable one…it is hard to differentiate between Option 4B on the one hand and varietis of Option 5 on the other.  For when we talk about various evils among which private property must be understood as the least, we are clearly using “evil” metaphorically if we are talking of a prelapsarian condition, and if we are using it metaphorically, then it’s hard to see how we’re saying more than Option 4B–that is, that the absence of private property would imply various inconveniences or just be somehow less good.  However, I include it not only for the sake of logical symmetry (which is always nice), but because I think there is a difference of emphasis that is reflected here, and that can be discerned in various thinkers.  It’s a question of whether you lean toward saying that private property could very well have been instituted, but really need not have been, or whether you say that all things considered, it really should have been instituted, but it wasn’t absolutely necessary.  Aquinas’s theory of property, which I have discussed a fair bit before on this blog, is an eminent example of an Option 4B view.

If you take Option 4A, you are basically committed (unless you posit a change in the natural law, which no traditional ethicist could do) to saying that the initial state of commonality was one of negative commonality, negative commonality that must be resolved into private ownership.  This was our Option IIIA in the previous post, which admits, you may recall, of eight different sub-divisions.  Of these, only IIIA2d would be impossible here, for the ethicist who saw private property as a necessary natural institution.  Any of the others–a Lockean unilateral appropriation, or a division into private property by the consent and under certain constraints from the community (more along the lines of Grotius or Pufendorf, for instance).

Alternatively, if you take Options 4B or 4C, you could construe the original commonality either negatively or positively.   One could imagine an original positive commonality, only one that is capable of being changed (Option IIIB1 in the previous post).  But a negative commonality would make good sense, a commonality awaiting specification into stable property relations.  One could say then that a specification into private property relations would be admonished (4B) or permitted (4C), but a specification into a positively common property arrangement (Option IIIA2d in the previous post) would be possible.  It is unlikely, however, that if one accepted a development into private property under either 4B or 4C that one would consider such a development legitimate if appropriation occurred on a strictly unilateral basis.  After all, if one considered private property as to some extent optional, and considered common ownership of some kind as the original state, this would imply that the rights of the community precede those of the individual, and thus any private property distribution would be subject to some extent to the consent or oversight of the community.


Let’s turn then to consideration of the “unnatural” concepts of private property.  Remember that, as I said above, “unnatural” does not in this context mean “wrong”–it merely denotes the view that private property would not have developed in man’s natural, created state, but only as a result of the Fall (here I use theological language, but there are secular and pagan analogues) .  The views I shall consider here do not, unlike Option 3, consider private property therefore to be in itself wicked; it is, we might say, like the death penalty.  Of course, that is another hotly-debated subject, but most of that debate (for Christian ethicists at least) would fall within the same sort of range I shall explore below, and so this will provide a helpful analogy.  The death penalty is clearly a result of the Fall, but is not therefore in itself evil; rather, it is in principle a legitimate (some would say necessary) response to the conditions introduced into society by the fall.  It is a remedial institution–remedial for wickedness, not merely inconvenience–and that is how most of the Christian tradition up until Aquinas understood private property.  Here again there are three main options, again classifiable in Hooker’s categories.

Option 5A: Private property is not appropriate in the state of nature, but once sin comes into the world, private property is required.  There is simply no other way to administer a world ruled by competing wills, and so property must be divided up this way.  Failure to do so is hopelessly utopian, doomed to failure, and in fact a wicked attempt to deny the order God has required for dealing with man’s fallen nature.

Option 5B: Private property is not appropriate in the state of nature, but once sin comes into the world, private property is advisable.  It is certainly possible to administer property in common, even in a sinful world, but it is very difficult, prone to fall apart when confronted with human greed and laziness.  We are thus admonished that private property is now the best way to proceed, though we are not forbidden to look for ways to make other arrangements work.

Option 5C: Private property is not appropriate in the state of nature, but once sin comes into the world, private property is permitted.  It is still not ideal, to be sure, but it may often be the only way to proceed.  Individuals or societies that administer their resources in this way are not therefore blameworthy, but one may well want to try other arrangements, despite the difficulties attending of common property in a sinful world.  

How do Option 5 views relate to the various accounts of the origin of private property, given in the previous post?  Well, again there is no one-to-one correspondence.  If one believes that the Fall introduced serious tensions into a pre-existing condition of common ownership (a condition obviously somewhat hypothetical if we are talking about only Adam and Eve), then this could make sense whether that condition were construed negatively or positively.  If negatively, one might well say that in the state of innocence, each man would simply take from nature what he needed, without overly trespassing on what his neighbor needed, but sin introduced a greediness to take at the expense of others, that required (or at any rate invited) the remedy of a clear enforceable limitation of who owned what.  Or if positively, one might well say that in the state of innocence, humans would consult together about the allocation and use of resources, and would make sure that they were shared equally, but that sin introduced such quarrelsomeness, corruption, and inefficiency into this arrangment, that required (or at any rate invited) a separation of control, so that each household was responsible for administering its own goods and no one else’s.  It does not seem to me that the choice between Options 5A, 5B, or 5C would materially affect this decision. 

However, what does seem clear is that an “unnatural” understanding of private property would all but rule out unilateral appropriation (Option IIIA1 from the last post) accounts of the origin of PP.  Why is this?  Well, let’s think about it for a moment.  Clearly enough, if one imagines a natural state of positive commonality, of active community ownership, then to get from this state to one of private ownership, direct action of the community is necessary.  The community may decide on any number of ways to break up the common possessions into individual possessions, but it seems highly unlikely that it would it would choose simply to allow a free-for-all–a scramble for possessions in which each individual stakes a claim on whatever he can.  Even if it did allow unilateral appropriation, as it might in a circumstance where the world was wide open for each to claim whatever he needed (as it was after the Fall), the community would presumably still have some say over the use of the property, given its antecedent claim.  What we are imagining here is a situation like that of the 1862 Homestead Act in the US, in which the government permitted individuals to move into undeveloped, unclaimed land (well, theoretically; in reality, occupied by native Americans), and make the land theirs by mixing their labor for it and then filing for a deed.  This is unilateral appropriation of a sort, but not pre-political, as in Locke’s concept; it in fact depends on political organization to legitimate it.  

The same goes if we imagine a state of original negative commonality.  For in this situation, the very problem that private property is addressing is one arising from greedy individuals seizing whatever they can.  The solution to this is a political one–to make enforceable public distinctions between mine and thine, distinctions that cannot simply be based upon however much an individual can appropriate for himself, Lockean-style, since this is precisely the evil that needs to be redressed.  In this understanding, “mine and thine” are not pre-political realities that men enter into political covenant to protect, as Locke understood it, but are rather realities that come into being only by virtue of political covenant.  We have natural common right of possession, then a degeneration into a war of all against all, and then the political creation of a private right of possession.  Private rights having then being created by the community, they are safeguarded by the community, but clearly with restrictions on legitimate appropriation and use enforceable by the community; the absence of such restrictions, after all, was the problem created by sin in the first place.   


A final point that we must here note is the role of redemption.  After all, the Fall is not the end of the story–we have Creation, then Fall, then Redemption.  If PP is “natural,” in the sense of belonging to creation, then it would seem it ought to survive in the state of redemption.  To be sure, redemption does not merely return us to creation, but takes us beyond it; nevertheless, it is creation restored and enhanced, it is recognizably continuous with the state of creation, and not a complete overturning of it.  So private property would most likely continue to be affirmed in redemption.  However, if PP is “unnatural,” in the sense of belonging to the Fall, then redemption seems likely to enact a reversal of it.  Of course, redemption does not undo the Fall all at once–it is a gradual process–but it does call us to start living in a new manner, and to start transcending the old way of life.  So, Christians who have seen PP as a result of the Fall have generally considered the institution to be relativised, overturned, undermined, transcended or some such by redemption–they have considered that redeemed man is called to start living out the replacement of private property that man’s restoration to his true nature involves.  

Indeed, until the late Middle Ages, some form of Option 5 was most common among Christian thinkers; indeed, it seems to me that there was a gradual move from an original stark pessimism regarding private property–a 5C view occasionally bordering on Option 3 (PP is simply wicked), becoming increasingly optimistic so that first 5B became more prominent, then 5A, then 4C, and finally Aquinas’s 4B view (which was still strongly contested by Option 5 variants for a couple centuries).  Then, of course, in the seventeenth-century, optimism about PP took another great leap forward resulting in the historically quite novel Option 4A, with which many of us now live quite comfortbly today.  


Where have we then arrived?  Why does all this matter?  Well, we seen a couple paragraphs above one very important reason why it matters.  If one wants to imagine private property rights as pre-political rights, held by individuals over against society, and toward which society as a whole has only duties, but not rights of its own, there are in fact only a very few routes by which one can reach this conception.  And yet this conception is clearly, rhetorically-speaking, the dominant one in modern America, particularly in Christian America, it is the dominant rhetoric in what I call “divine right capitalism.”  Since this already came up earlier in this series, I will quote a recent blog post by Doug Wilson as a convenient example:

“This command [thou shalt not steal] presupposes the institution of private ownership — private property as a divine institution — and sets up a fundamental protection against assaults on the right to own property. It does this in just the same way that the prohibition of adultery presupposes the institution of marriage. If marriage is just a “social construct” that our laws can redefine or abolish, then the same goes for adultery.”  

Here, PP is emphatically claimed as something that precedes all human laws, that belongs to each individual (or rather, each household) naturally and by divine right.  This must be an Option 4A view (if not an incoherent Option 2 view).

However, in these same circles it is often claimed that the great virtue of capitalism is that it is a system built on the assumption of human depravity–that private property in particular is an institution required by and fitted for sinful man, who simply cannot succeed in any attempt at common ownership.  Capitalism and its corollary, PP, may not be “natural,” but they natural under a post-Fall condition–they are the only option, we are told, and are therefore divinely commanded.  This sounds like an Option 5A view.

Now, one or other of these must be true, it seems.  Option 5A is more theologically plausible, but as we have just seen above, it yields the conclusion that PP is inescapably a political right–it is a product of human society and to some extent dependent on the will and constraints of the community.  And of course, this is precisely what Locke and his modern pseudo-theological followers want to avoid.  Moreover, it strongly suggests that Christians ought, to some extent, to be seeking to transcend private property and live out restored nature, something few Christians seem particularly interested in doing these days.  Option 4A, Locke’s own, seems to yield the desired practical conclusions, but at the cost of being highly suspect from a theological and ethical perspective, as I shall explore further in the next installment.  We simply cannot have our cake and eat it too.  We must recognize that it makes a difference how we account for the origin of private property, and how we account for its ethical legitimacy.  Neither are simply self-authenticating, and the decisions we make have important political and ethical ramifications.  


In the next installment, I’ll look at some problems with the Lockean view.  Then, in the eighth, I hope to finally turn to the constructive task.  That will mean leaving the realm of mere abstraction (which I have inhabited here), which talks freely about the “state of innocence” and “the postlapsarian state” without any attention to the concrete Biblical narrative of these states, and turning its attention (in large part, at least) to the insights and constraints provided by the Scriptural witness.



Locke’s Right to Theft of Private Property?

Is “theft” ever just?  Is the right to private property absolute?  That is to say, does a man in urgent need have a right to the means of his sustenance so that he is entitled, if necessary, to take what he needs from a person who has more than enough?  Regular readers of this blog will recall that this has been a frequent theme of discussion here in the past year.  In the past, however, it was Aquinas who was commonly referenced as the chief example of this concession, this limitation of private property rights (common though it was in the classical Christian tradition).  But although John Locke often figures in such discussions as the symbol for the development of modern, capitalistic, increasingly absolute property rights, it turns out that this theme is not alien to his thinking either.  He remains more traditional than we might expect.  

Locke shares with Aquinas and the tradition the belief that in the beginning, the world and its goods were created for the common enjoyment and sustenance of all mankind, each of whom had an equal right to be nourished by the earth’s fruits.  Although he gets from this point to the lawful existence of private property via a significantly different route than Aquinas, this starting point means that he can hardly allow that anyone’s subsequent private property rights could extend to the point of denying basic sustenance to the starving.  

In his meticulous summary in The Right to Private Property, Jeremy Waldron states that according to Locke, private property rights “are themselves constrained by a deeper and, in the last resort, more powerful general right which each man has to the material necessities for his survival.  This forms the basis of what one might refer to as entitlements of charity in Locke’s system.”  Waldron expounds further: according to Locke, everyone has a responsibility, second only to the preservation of his own life, to preserve the lives of others.  This of course imposes the negative duty not to harm others,

“but Locke quickly makes it clear that the duty has a positive side to it as well.  When it is put together with premisses (1) and (2), it generates the following claim-right as the substantive basis of the Lockean theory of property: ‘Men, being once born, have a right to their Preservation, and consequently to Meat and Drink, and such other things, as Nature affords for their Subsistence’ (II. 25).  That this doctrine imposes positive duties on men to satisfy others’ needs (or at least stand aside while the needy make use of property  acquired by those who are not needy), and that these duties are correlative to the rights of the needy, is emphasized in the following important and often-overlooked passage from the First Treatise: 

‘God the Lord and Father of all, has given no one of his Children such a Property, in his peculiar portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods; so that it cannot justly be denied him, when his pressing wants call for it. . . . As Justice gives every Man a Title to the product of his honest Industry, . . . so Charity gives every Man a Title to so much out of another’s Plenty, as will keep him from extream want, where he has no means to subsist otherwise. (I. 42)’

Locke, in other words, is not prepared to concede absolute rights to any owner, no matter how respectable the [147] pedigree of his endowment.”  

Of course, we may notice the oddity of the term “entitlement of charity” and the clause, “so Charity gives every Man a Title to so much out of another’s Plenty…”  This seems a bit oxymoronic, as the whole point of “charity,” one would have thought, was that it was free and voluntary, extending beyond the obligations imposed by justice.  Justice involves strict rights and obligations, it concerns what a man has a “title” to, but charity operates at the less clear-cut level of moral obligation, where one’s duty to render something to another does not necessarily correspond to any right that he has to expect it from you.  Needless to say, the dividing line between these two, particularly on this question of economic justice, has been bitterly contested.  For, if an obligation is one of justice, then, on standard definitions, one has recourse to the justice system in case the obligation is not performed.  And thus, on our particular example, the hungry man would presumably be exonerated in court for taking the loaf of bread from the rich man’s larder.  But if the property owner merely has a charitable duty to forgo his rights in favor of the needy man, then he could still prosecute the thief.  On a wider level, if the right to sustenance is a right of justice, then a government may have some role in restricting property rights accordingly.  Waldron clearly takes the right to sustenance as a fully-fledged right that can genuinely override the right to private property, but the actual language is a bit fuzzy.

Of course, Locke’s ambiguity at this point is not uncommon.  Even in Aquinas, there is a confusing tangle of duties of charity and justice governing the limitations on property rights (though John Finnis has helpfully untangled these–see here); in Leo’s Rerum Novarum, more influenced by Locke than Aquinas, he says “if the question be asked, how ought man to use his possessions? the Church replies without hesitation: ‘As to this point, man ought not regard external goods as his own, but as common so that, in fact, a person should readily share them when he sees others in need.’ Wherefore the Apostle says: ‘Charge the rich of this world…to give readily, to share with others.’”  But, he goes on, “these are duties not of justice, except in cases of extreme need, but of Christian charity, which obviously cannot be enforced by legal action,” a point that has proved contentious in subsequent Catholic Social Teaching.  However, it is worth noting that Leo does make the case of extreme need–of basic sustenance–which is the proviso under discussion in Locke, a matter of justice, and so an actual structural limit on property rights.


One other interesting point on which Locke does not advocate absolute private property rights–he does not believe one has a right to use or abuse one’s property.  C.B. Macpherson claims that according to a modern understanding of property rights (with which he groups Locke), “It is a right to dispose of, or alienate, as well as to use; and it is a right which is not conditional on the owner’s performance of any social function.”  James Tully argues however, that for Locke, property rights “are not rights of abuse; on the contrary, a man ‘has not the Liberty to destroy . . . so much as any Creature in his Possession, but where some nobler use, than its bare preservation calls for it’ (II. 6).”