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.

 

 


The Origin of Private Property (The Problem of Private Property, Pt. 5)

After a long hiatus to focus on Hooker and McCormack, I’m finally getting back to my series on the problem of private property.  Unfortunately, it will still be some time before I start trying to provide any answers to that problem.  At this point, there is still a lot of problematizing to do–explaining why we can’t simply take private property for granted and why it makes a difference how we explain it and justify it.  Having in part 1 then addressed the ambiguity in the definition of private property, in part 2 (and a follow-up) addressed the facile appeal to the eighth commandment as providing an account of the justification of private property, in part 3 the problems that the New Testament raises for private property, and in part 4 borrowing from Kathryn tanner a description of the distinctively modern understanding of private property, I will in the next two segments attempt to classify the range of possible explanations that may be offered for the origin and justification of private property.  

No doubt there have been plenty of theorists and ethicists who have already proposed such classification schemes, but as I haven’t come across them, I’ve invented my own scheme.  Of course, like all such schemes, it draws neater distinctions between various approaches than actually exist; many theories of property would probably blur some of the lines I draw here.  But hopefully this will helpful in providing a survey of the various logical possibilities.  I warn you that this will be a tedious exercise, but it’s a necessary one, I think, if we are to properly appreciate how complex the problem of private property really is.  

 

In this segment, I’ll be distinguishing between origin narratives, as opposed to justification arguments (the next segment).  Most of the origin narratives I’ll be looking at will have a justificatory element, and most of the justification arguments will contain a large element of origin narrative; however, they serve to focus attention on different aspects of the problem, and so, to get the fullest picture, it will be helpful to run through them separatelyNote also that as my focus here is on the basis for private property, I will not be considering narratives describing a move from a state of private property into communism, as we find in Marxism for instance (though I will be considering a few possibilities in which private property never comes to be in the first place).

 

So, if we ask, “Where does private property come from?” there are three main answers that can be given: (I) in the beginning, all things were private; (II) in the beginning, some things were private, and all the rest was common; (III) in the beginning, all things were common.

The first statement, once we examine it, appears almost untenable today, although for a spell during the 17th century it achieved remarkable dominance in certain circles.  If this option were true, we would have to say that Adam was endowed at his creation with private proprietorship over all things, answerable perhaps to God for his administration thereof, but not to men, as his right predated the existence of other men.  When descendants were born to him, they acquired property inasmuch as he opted to bequeath it to them, and otherwise had none.  Now, the patriarchalist theory that arose in the seventeenth century argued that by this inheritance, according to the right of primogeniture, the kings of the earth legitimately hold full dominion over all property in their realms, having inherited a title thereto in direct descent from Adam.  How exactly the theory worked I’m not sure, but needless to say, it depended on a conviction of the natural inequality of men that is untenable today, and should indeed have always been untenable from a Christian perspective.  If we were to affirm instead the natural equality of all men before God, and their equal claim to God’s gifts in creation, then on the original private property thesis, we could presumably say that although Adam owned all things, he was bound to divide them equally (or at least roughly equally) among his descendants, who were then to divide them equally among their descendants, and so on.  But of course, such a conception would raise the question of how the whole world, as yet mostly unexplored, was to be successfully so divided; at best, only those lands currently known and surveyed could be divided up, the rest would have to be considered as common in one sort or another, though there might be some general principles of equality governing its division.  In any case, this would take us to spelling out the possibilities under option III.  In any case, I am not actually aware of any thinker who has argued for this equal-inheritance-from-Adam model of private property, so I will forbear from exploring it further.

So then, on Option I–the assumption of original private property–we have either to assume a patriarchalist inequality legitimating regal dominion, which almost no one would want to anymore, or an equal division which would in practice have to treat most things as common from the beginning.  So this assumption seems to be a non-starter.  However, this has not kept some Christians from carelessly speaking as if private property really was original in this strong sense.  For instance, in their atrocious book Calvin and Commerce, David Hall and Matthew Burton assert, “After the flood, for example, Noah and his family virtually owned the world,” implying that the entire world must be considered the private property of whoever first came into it.

 

Option II can be dealt with fairly briefly.  For if we say that in the beginning, some things were Adam’s private possession, and the rest was common, it is difficult to see what role the private portion could play in a subsequent narrative of property today, unless for a patriarchalist thesis.  A patriarchalist might argue not that Adam possessed at first the whole world as his private possession, but that he possessed a certain portion of it, which could be passed on along the eldest male line, to legitimate a certain supremacy of wealth and dominion for monarchs supposedly descended from this line.  Or perhaps, if we posited an equal division of property among all Adam’s descendants, this option would argue that a certain minimal portion of the world belongs to each human being as his private inheritance from Adam, while the bulk of the world’s property, originally common, has been divided up in a different fashion (as will be discussed at length in a moment).  Such a proposal, though, would be rather too vague and abstract to serve as the basis for any concrete determination of what naturally belongs to each human as their right of inheritance.   So in any case, any form of Option II would leave us still having to account for most of the property in the world according to one of the forms of Option III, to which we shall now turn our attention.

 

To say “In the beginning, all things were common,” sounds to many today like dangerous radicalism, but as we have already seen, this seems upon reflection to be the most coherent account that could be given.  If God created the world, and filled it with good things, and put into it man to oversee the whole and use it for his sustenance, and if all men are by nature equal before God, equally deserving of sustenance from and enjoyment of the fruits of creation, then in the beginning, all of creation belongs to all men equally, and to none particularly.  Not, of course, that it would make much difference whether we spoke of “common” or “private” in the time of Adam, but as soon as man multiplied and began to fill the earth, we would need to be able to say whether some men had a particular right to some portion thereof, or whether all had an equal claim upon it.  The latter seems clearly the most plausible option.  But here we branch into many competing ways of construing this original commonness.

First, the statement “all things were common” could be construed in (A) a negative sense or (B) a positive sense.  According to the former, this means merely that nothing was as yet specified as the particular possession of anyone, but it could become so.  According to a positive construal, this would mean that all things were communally owned–communities of men had control over property, which was positively shared among the members.  Think of it as the difference between a city park and an unclaimed wilderness.  In the one case, anyone has equal right to use it because everyone has rights of use; in the other, anyone has equal right ot use it because no one as yet has rights to it. 

 

Now, our IIIA negative commonality is obviously a temporary state–it is property over which no one has as yet established any rules of use, private or public, a situation that is bound to change sooner or later.  I suppose we could imagine a condition of perpetual anarchy, in which humans never established any fixed rules for how property was to be claimed and used, so that there was a perpetual war of all against all for its resources.  However, clearly (and thankfully) that is not how history turned out.  So if we believe that option IIIA characterized property in the beginning, there are a number of ways it could then come to be governed by certain rules of possession and use.  These can be classed under 1) unilateral, and 2) multilateral means of appropriation.  Under unilateral appropriation, any individual could, acting on his own initiative, remove property from its state of negative commonality and make it into his private possession, by carrying out certain actions with respect to it.  Needless to say, we are most accustomed to theories of this sort, John Locke’s being the most famous.  However, there are strong counterarguments to be made against unilateral accounts–how could any individual justly take actions that might negatively affect his fellows without their consent?  (distinguish between origin and justification here.)  Alternatively, then, we could say that even completely unclaimed property only passes into private ownership by the decision of communities, by an agreement among men to allow each of them to take exclusive possession of resources, and have rights of dominion and use over against one another.  

But, to be entirely precise, we would have to differentiate between a spectrum of eight different options, four under each of these headings.  First, under IIIA1 unilateral appropriation, we could suggest (a) a complete free-for-all, in which no rules whatsoever governed the acquisition of property, a might-makes right system.  Or we could suggest (b) that there are certain “natural” conditions that must be met–e.g., the Lockean “mixing of one’s labour”–that are necessary and sufficient for staking an exclusive claim to resources.  Or (c), we could assert that, over and above these natural conditions, the community of one’s fellows would be able to establish certain further conditions for legitimate acquisition and continuing title–e.g., that one could only stake an initial and continuing claim to certain resources, so long as there was sufficient left for one’s fellows to claim for their own needs (Locke himself makes a proviso of this sort).  Or finally, (d), we could go so far as to say that while property could be claimed unilaterally, such claims would always be subject to revocation by the community, which would never cede to individuals a complete right to dispose of resources according to their own pleasure, but would maintain the right of the whole community to make decisions regarding distributions that affected the whole.  With this last, we are close to, though still logically distinct from, multilateral appropriation.

So, what are the options for IIIA2 multilateral appropriation?  Well, (a) the community could come together as a whole and establish rules for legitimate unilateral appropriation.  That is to say, imagine a tribe moving into a new area, calling a council, and together stipulating various conditions that, being met by any member of the tribe, would entitle him to private possession of a certain piece of territory (these could be similar to the Lockean conditions, for instance).  This seems very close to IIIA1b above, but is distinct inasmuch as these conditions are understood as positive, rather than natural.  Alternatively, (b), the community could come together and simply allot various portions of property to individual private possessors (whether equally or unequally), but with the understanding that, having made this initial distribution, the community now left this property entirely in the hands of its new private owners–an irrevocable distribution, in short.  Or, (c), the community could make a revocable distribution, dividing up resources among private owners but with the proviso that they were always subject to partial or full redistribution by the community should the common good so require.  Finally, (d), we could imagine a state of negative commonality of which the only change was a communal act of appropriation into a state of positive commonality–where the community asserted a positive right to administer and share the resources which until now had been governed by no rules and rights.  Obviously, these eight options disguise an enormous number of possible variations, but the basic distinctions should be clear enough.

 

Now, there is one part of our taxonomy still to be filled out–the various possible understandings of IIIB, positive commonality.  Here again there are two main subdivisions: this could be conceived as 1) a mutable state of affairs, or 2) an immutable state of affairs.  In the first case, property would be understood as being subject to common oversight and administration, but such that it could subsequently be divided up privately if it seemed good to the community (and such division could occur along any of the lines sketched in IIIA2 above); in the second, this common property administration would be seen as a permanently binding institution.  A further distinction is also possible in both cases–a distinction between a) decentralized regulation and b) centralized regulation.  These are not the most precise terms, and are certainly not hard-and-fast categories–we can imagine a great many possible variations.  But to give some idea of the distinction I have in mind, here’s a couple examples.  As an example of something like the former, though, we might imagine a society that treated all its farmland and forests as common property, and thus set up various rules of fair use–each member of the society was free to make use of the property and gather resources from it, but not beyond a certain amount, or on certain days, or in case of certain circumstances that would be injurious to his fellows, etc.  Individuals would generally be seen as self-policing, and only in cases of blatant violations would the community intervene in some capacity to reassert its rights to dispose of the property over the individual’s rights.  As an example of the latter, we could imagine a society in which a council directed individuals in their various tasks of gathering resources from the communal land, which resources were then all brought to a common pool to be shared out by the council’s direction according to the needs of each.  Both of these models could be communal property regimes, but clearly they would function quite differently.  

 

To recap, then, we have the following taxonomy (apologies that the outline formatting isn’t working right…)

Origin of Property

I. All things originally private

A. Divided up unequally, with property dominion descending to ruler

B. Divided up equally among Adam’s descendants

II. Some things originally private, all the rest common

A. Private portion divided up unequally, with property dominion descending to rulers

B. Private portion divided up equally among Adam’s descendants

III. All things originally common

A. Negatively construed

1. Unilaterally appropriated

a. No conditions, free-for-all

b. Natural conditions must be met

c. Natural conditions must be met and continuing social restraints apply

d. Initial appropriation, though unilateral is always subject to revocation by the community

2. Multilaterally appropriated

a. Community determines rules for legitimate individual acts of appropriation

b. Community makes an initial distribution, but cannot retract its decision

c. Community makes an initial distribution which it retains power to revoke.  

d. Community asserts positive communal ownership 

B. Positively construed

1. Mutable state of affairs

a. decentralized administration

b. centralized administration

2. Permanent state of affairs

a. decentralized administration

b. centralized administration

 

Now, this has been quite a tedious exercise, but it should be clear that the route one takes here makes an important difference to any theory of property justice.  In the modern world, most debate tends to fall within the bounds of IIIA1 narratives (bolstered by careless rhetoric that sounds like some form of Option I), in which it is granted that individuals have the right to make property their private through their labour on it, and the only question is to what extent social conditions and restraints continue to govern their possession of it.  Historically, Christian theorists would generally have held to some form of IIIA2 or IIIB1, and there are still some who continue to argue this case (though usually not the Christians, incidentally).  However, the ethical and theological dimensions of such theories will become clearer when we look at justification arguments, to which I shall turn in the next segment.


The Modern Understanding of Property (The Problem of Private Property, Pt. 4)

I realized that before I go further in the property series, in which I frequently allude (generally critically) to “the distinctively modern concept of private property”–in contrast not only to other concepts of property arrangements, but also to premodern or non-Western concepts of private property relations, I ought, perhaps, to say just what I am referring to.  After all, a fish doesn’t know it’s in water, and it’s hard for us, all brought up in this paradigm, to recognize it as a distinctive concept at all, or to discern its unique shape. 

Thankfully, however, Kathryn Tanner has done the job for me.  Near the outset of her phenomenal essay “Economies of Grace” (from Having: Property and Possession in Religious and Social Life, ed. by Charles Mathewes and William Schweiker), she offers a thorough and lucid sketch of what in particular is meant and implied by the notion of private property in the modern West: 

“Underlying this modern scenario is an understanding of property that is historically conditioned by the existence of capitalist markets and principles of production.  Under such conditions, as they developed in the industrialized West, property tends to be identified with wealth, with material stuff that might be traded or exchanged for money, or with capital in the sense of what is not to be consumed or used up to meet immediate human needs but used instead for purposes of accumulation, to yield more, to produce profit.  To the extent property is not simply identified with what one has in one’s physical possession, but involves a legitimate claim, property tends to mean simply a right to what one already possesses.  Property in this sense does not include any right to what one does not have but deserves to, or any right to what is not a possible possession (say, rights to develop one’s capacities and talents.)  Nor does it primarily concern rights in things short of possession (say, rights to use what one does not own).  

Property is, moreover, private in the sense of exclusive ownership, the exclusive or negative right to keep others from the use and enjoyment of it.  Only on that condition can property be bought and sold; it makes no sense to put up for sale what both parties to the exchange already have rights to use and enjoy.  Property implies, besides rights to exclude others from the use or possession of what one has, rights to dispose and transfer by explicit contractual conditions of exchange; only private property, over which one has exclusive rights of possession and use, can be alienated in those ways.  Individually rather than communally defined, having property is not a function of social relations; social relations are instead the product of exchanges that (only) persons who already have property engage in freely, to further their self-interests.  Nor does having property imply social obligations.  Property involves an unconditional right of disposal: one has not just an exclusive right to use and enjoy what one has but the right to sell or alienate it freely.  Freely means, in part, without thought of the social consequences and without being subject to social requirements.  One can do with one’s property as one likes (so long as one does not disturb thereby the private property rights of others).  In this way the modern sense of property seems to bring with it unlimited rights of individual appropriation.  Having property in one’s person is understood along these same lines.  If one has nothing else, still one has one’s own life and labor power; everyone possesses something–oneself and one’s capacities for action.  This is quintessentially private property in at least the sense of what is exclusively one’s own: one’s life and labor power are not owed to anybody else; one has the right to exclude others from the use or enjoyment of them; such rights can be given only through one’s free consent.  Exclusive property rights to one’s person and capacities become the means of justifying all other forms of exclusive property–that is, property in material possessions.  If one’s labor is one’s private or exclusive property, then so too are the products formed through its use.  One has rights of exclusive possession with respect to what one has worked for.

Property in one’s person is private property too, in that, at least with reference to one’s labor power, it is disposable property–one can sell it and alienate ownership of the products of it.  A modern capitalist market, indeed, requires persons with this sort of ownership relation to their own capacities to work since only on that condition are they free to contract to sell it in exchange for wages.  Because one always owns oneself, the contracts in which one participates under conditions of extreme inequality can still be deemed ones into which one has freely entered.  Inequalities in initial circumstances and results are, for that reason, not thought to make market exchanges less than genuine contracts.  This connection between the idea of self-possession and market legitimacy means that rethinking self-possession threatens to make manifest the injustice of market relations in situations of economic inequality, that is, in situations where the institution of private property entails that some people will need to alienate their work and its products for the sake of a decent life.  

This logic of modern property brings with it a certain understanding of social relations.  Social relations are, first of all, consensual in virtue of a freedom that is a function of wealth.  Having property allows one’s relations with others to be consensual.  If one has property one is not at the mercy of one’s fellows but can approach them on an equal footing.  The freedom that having property involves is, moreover, primarily understood negatively–as freedom from others and their potentially unjust seizure or use of what is one’s own.  One has one’s own person and the products of one’s own labor without owing them to anyone else; one does not owe them, in particular, to society, and therefore no legitimate social controls determine what one might do with them.  Freedom from others suggests in this way freedom from any rights of needy others to use or enjoy what one has.  Exclusive property rights in things and negative freedom mean that the modern sense of proeprty is not easily compatible with the idea of rights to well-being on the part of the general populace, or with the idea of a social commitment to furthering the livelihood of all.  What a society is all about, what it can be dedicated to, is in this way narrowed by modern understandings of property.” 


Propertied Patriarchs, Prophets, and Apostles (The Problem of Private Property, Pt. 3)

In the previous post in this series, I sketched the common appeal to a “Biblical defence of private property,” and then addressed the first and chief pillar of that defence–the eighth commandment.  Now I will take a look at the remaining components of this appeal: “God’s approval of private property is further demonstrated by the approbation given to so many wealthy men throughout the Scriptures–from Abraham, Isaac, and Jacob to Job and Solomon to Joseph of Arimathea, Barnabas, and Lydia.  In the New Testament, Jesus and the Apostles never call the institution into question, but on the contrary, they presuppose it and bolster it, whether through parables that feature wealthy landlords, or through the case of Ananias and Saphira, where Peter tells them that they were completely free to sell or keep their lands as they saw fit (Acts 4:4).” 

So, first, what do we learn from the fact that many patriarchs and other godly people in the Bible were blessed with great wealth and seem to be approved in their use of it?  Well, it could of course be asked in response: what do we learn from the fact that many people in the Bible were condemned for their great wealth and their use of it?  Private wealth is clearly an ambiguous good, as the case of Solomon makes clear: the king is not supposed to amass private wealth, but God blesses Solomon with it anyway, but it helps lead him away from God and involves the oppression of his people.  But the fact that God blesses his saints with rich private possessions does at least establish one important point contra Proudhon and his ilk, who believed “property is theft”–there is nothing inherently wrong with private property, it would seem.  However, does it tell us much more than that?  Does it tell us, to ask again the questions I put to the eighth commandment, about of the origin of PP?  The basis for it?  The conditions of its legitimacy?  Does it tell us whether PP is the only appropriate system for property, whether it is a biblically mandated institution?  Does it tell us whether PP is an imprescriptible right, or merely one “right” among others, which under various circumstances should be constrained or even abolished in favor of other considerations?

It doesn’t look like the cases of wealthy Biblical saints answers any of these questions for us.  Indeed, to return to the parallel with marriage that I mentioned in the discussion of the eighth commandment, it is worth noting that most of the wealthy Old Testament examples were blessed not merely with multiple flocks but with multiple wives as well, something we have come to treat as not merely a bad idea but as flat-out unnatural.  Moreover, we shouldn’t forget that one of the patriarchs (Joseph) engaged a full-scale communist expropriation of the land of Egypt, which, unless you are to take the theonomist tack that this was legitimate as the plundering of the godless by the godly, tends to complicate the picture.  If we can learn anything about property rights from these examples, though, it would seem to fall under the heading of “the conditions of its legitimacy,” and here again, the conclusions do not prove terribly friendly to a laissez-faire arrangement.  The patriarchs amassed their fortunes in what we might consider to be a “pre-social” or “pre-political” state–they were wandering nomads in an only partially-settled land, not members of a settled society.  Such is not our situation, and one might easily argue that once a political settlement was established, property would have to be reallocated according to a more equitable arrangement (which was in fact what happened in the settlement of the Promised Land).  And when we come to the wealthy saints of the New Testament, the striking thing is not the privateness of their property, but its commonness.  Their private property is either given away to be shared among the community, or is used for the needs of the community–as a place of worship, hospitality, etc.  But to say this is to jump ahead to the next point.

So, what about private property in the teaching of Jesus?  Is it really true, as the divine right capitalists claim, that Jesus never called private property into question, but on the contrary, presupposed and affirmed the institution throughout his teachings?  Well, truth be told, Jesus tells us little or nothing regarding the legal and political basis of property, but he certainly doesn’t have many encouraging things to say to or about those who possess a lot of it: “If thou wilt be perfect, go and sell that thou hast, and give to the poor, and thou shalt have treasure in heaven….It is easier for a camel to go through the eye of a needle, than for a rich man to enter into the kingdom of God.” (Mt. 19:21, 24; Mk. 10:21, 25; Lk. 18:22, 25)  “He hath filled the hungry with good things, and the rich he hath sent empty away.” (Lk. 1:53)  “Blessed be ye poor, for yours is the kingdom of heaven….But woe unto you that are rich, for ye have received your consolation.” (Lk. 6:20, 24)  “Sell all that ye have, and give alms; provide yourselves bags which wax not old, a treasure in the heavens that faileth not.” (Lk. 12:33)  We hear sometimes that Jesus in his parables portrays wealthy owners positively; even if that is so (and most of the cases are debatable), there are certainly many parables aimed quite directly at the rich (e.g., Luke 12:16-21; 16:19-24).  If we are to seek the justification of private property in the mere fact that some characters in the stories Jesus tells are property owners (as, I kid you not, some have done), then we could justify pretty much anything via appeal to Scripture.  Jesus’s own practice, from what we can tell, was to hold property in common with his disciples, and to share the little they had with those who had still less.  The example of Jesus, it seems, is hardly a promising place to look for justification of a private property regime. 

 

The same pattern carries over into the early Church, where the anti-property tone becomes increasingly blatant:

“And all that believed were together, and had all things common; and sold their possessions and goods, and parted them to all men, as every man had need” (Acts 2:44-45). 

“And the multitude of them that believed were of one heart and of one soul: neither said any of them that ought of the things which he possessed was his own; but they had all things common.  And with great power gave the apostles witness of the resurrection of the Lord Jesus: and great grace was upon them all.  Neither was there any among them that lacked: for as many as were possessors of lands or houses sold them, and brought the prices of the things that were sold, and laid them down at the apostles’ feet: and distribution was made unto every man according as he had need.  And Joses, who by the apostles was surnamed Barnabas, (which is, being interpreted, The son of consolation,) a Levite, and of the country of Cyprus, having land, sold it, and brought the money, and laid it at the apostles’ feet” (Acts 4:32-37). 

It is at this point in the narrative, with Christians, as soon as they embrace Christ, renouncing property left and right, without exception throwing all their resources into a common pool, that we meet the story of Ananias and Saphira.  In other words, the defenders of PP are clearly venturing into some fairly dangerous territory to find here a proof-text for private property.  One might just as readily seek to plunder the pages of the Communist Manifesto for some isolated paragraphs in defence of private property.   

So, if we are reading naturally, we will probably encounter the story of Ananias and Saphira with a prima facie skepticism about the good of private property.  So, when Peter says to Ananias, “While it remained, was it not thine own? and after it was sold, was it not in thine own power?” we are probably not going to jump to the conclusion that Peter is attempting to defend the institution of PP.  Those who take it so read the passage as follows: “Some people were voluntarily coming forward and offering all of their property to the apostles.  They didn’t need to, but they chose to.  Ananias and Saphira, for some reason, decided to pretend to do so, when in fact they only gave a portion of their property.  Their sin here was not greed, for there was nothing wrong with holding back the property, but merely lying.  And this is what Peter says to them– ‘You were perfectly free to hold onto the property–there woulda been nothing wrong with that–but why lie about it?’”

 On the contrary, it will make much more sense to take Peter as describing no more than the de facto powers which Ananias possessed in this situation.  Contextually, the episode reads more like this.  “Everyone was coming forward and yielding up all of their property to the common fund.  Ananias and Saphira didn’t want to do so, but wanted to hold back some for themselves, but they didn’t want to look bad, so they decided to pretend they were giving away all of their property.  When Peter saw this, he demanded of Ananias, ‘Look, if you wanted to be stingy, then why not go ahead and be stingy?  You had the power to hold onto your property if that’s what you wanted to do, so why pretend to give it if you’re not really ready to?’”  In other words, Peter acknowledges Ananias and Saphira’s legal right over the whole of the property, since they are clearly jealous of that right, but there is no reason to suppose that he is encouraging them or any other Christians to lay stress upon that right; the tenor of the passage seems rather to be quite dismissive of it.  

 

Now, none of this, I must be very clear to say, is intended to deny that there are good counter-arguments to such readings.  For instance, I recognize that much effort has been expended to make the case that the community of goods in the early Church was not intended, or at the very least not required, to be a model for all ages of the Church.  There is no doubt merit in many of these efforts.  Likewise, much effort has been expended to argue that Jesus’s commands to “sell all your possessions” and his indictments of the rich are not as sweeping as they at first appear, and do not mean that many of us need to worry about selling our good and giving them to the poor.  There is no doubt merit in many of these efforts.  However, I want to draw attention to the fact that these readings take effort–they are not straightforward, simple, and natural.  One can certainly defend PP against the Gospels and Acts, but it would be exceptionally cocky to try and defend PP out of the Gospels and Acts.  The best PP seems to get from the NT is a sort of curt nod–an acknowledgment that the institution in fact exists, but with little attempt to make it look very respectable, or to encourage us to lay much stress on it.  If we go back before Christ to the Old Testament, we find a somewhat more congenial atmosphere, clearly affirming some kind of private property ownership as legitimate, but under significant restrictions, and without ever coming close to telling us that private property is the only legitimate regime, or telling us that the private property is somehow rooted in nature.   

If we were to seek to argue anything like these latter claims, we would have to do it on some other basis than that of Scripture, and careful always not to directly contravene Scripture.  In the following segments, I will explore what forms such arguments might take.


“Thou Shalt Not Steal” (The Problem of Private Property, Part Two)

In Christian circles, if ever any question is raised which seems to constitute an attack on private property (as almost any attempt to critically discuss the subject seems to PP’s jumpy defenders), the response is likely to go something like this: 

“Well, the Bible speaks very strongly and highly of the importance and legitimacy of private property.  (Often at this point, the very peculiar language of a “sacred right” or a “sacred institution” is used.)  A defense of private property is built right into the Ten Commandments, with “Thou shalt not steal,” and the rest of the laws show a great concern for the rights of property-holders.  God’s approval of private property is further demonstrated by the approbation given to so many wealthy men throughout the Scriptures–from Abraham, Isaac, and Jacob to Job and Solomon to Joseph of Arimathea, Barnabas, and Lydia.  In the New Testament, Jesus and the Apostles never call the institution into question, but on the contrary, they presuppose it and bolster it, whether through parables that feature wealthy landlords, or through the case of Ananias and Saphira, where Peter tells them that they were completely free to sell or keep their lands as they saw fit (Acts 4:4).”

Now, to those accustomed to take the institution of PP for granted (which is to say, almost every modern western Christian), this argument seems amply satisfactory.  But a closer look at the components of this case shows that they prove very little of what they are called upon to prove.  In this post, I’ll address the eighth commandment, and in a following post, the rest of this argument.

“Thou Shalt Not Steal”

It is first worth remarking in passing that this commandment does not come at the very beginning of our Bibles.  We have a fairly clear example of PP ownership as far back as Abraham, though no earlier, and this is the first normative reflection on the subject.  In the fourth installment of this series, I will return to look at how we might go about filling in this lacuna–that is to say, how PP fits into the very earliest bits of the narrative–Creation, Fall, and all that.  

But for now, what does the commandment “Thou shalt not steal” give us?  Does it provide an account of the origin of PP?  The basis for it?  The conditions of its legitimacy?  Does it tell us whether PP is the only appropriate system for property, whether it is a biblically mandated institution?  Does it tell us whether PP is an imprescriptible right, or merely one “right” among others, which under various circumstances should be constrained or even abolished in favor of other considerations?  Unfortunately, I don’t think we can resist the conclusion, once we turn to really consider it, that it does none of these things.  All that it tells us, in fact, is that in a society where there is a settled system of property rights (which, as Jeremy Waldron points out, does not necessarily mean a PP system–there are a number of different non-PP systems of property rights), it is wrong to take it upon oneself to violate such rights, unilaterally appropriating for oneself what is considered the property of another.  Put this way, it seems that theoretically, the eighth commandment might indeed offer no endorsement of PP, but merely to tell us how we ought to act if we find ourselves under such an arrangement–much like a command to pray for our enemies and persecutors.  

Of course, I think that such a reading would be much too weak, if we are to take the Decalogue seriously at all as a sort of compendium of natural law.  After all, we wouldn’t want to find ourselves arguing that “Thou shalt commit adultery” tells us no more than that, should we happen to live in a society that establishes and expects stable faithful marriage relationships, we ought to refrain from transgressing those bonds.  Just as we would like to take the seventh commandment as a statement of the intrinsic importance of fidelity to an intrinsically important bond, in which the distinction between my spouse and your spouse is not merely one of convention, but part of God’s intention for human life, so it seems we would want to take the eighth as establishing that God favors an ordered system of property rights in which it is wrong to unilaterally ignore the distinction between mine and thine.  

However, this comparison does not quite so easily solve our problems.  When we consider what the institution of marriage involved in ancient Israelite society, we will quickly see that it involved some rather dramatic differences from our conception of marriage.  Marriage did not need to be monogamous, did not depend on the consent of the two parties, did not involve equal legal standing for both parties, but was a very asymmetric relation in which the husband had many powers over his wife that we would consider tantamount to property rights, etc.  It will readily be seen that similar problems attend the concept of PP.  The seventh commandment establishes the existence of something called marriage that it is wrong to transgress, and the eighth establishes the existence of something called property that it is wrong to transgress, but in and of themselves, they don’t get us that much further than that.  

With marriage and adultery, indeed, we are able to say rather more than that, because Scripture as a whole has a great deal more to say, addressing almost all of the questions we put to the eighth commandment above–its origin, basis, conditions of legitimacy, normative status, circumstances when it can be dissolved, etc.  We are given to understand from very early on the rationale for marriage, and its place in the divine plan for the human race.  We could say something very similar, indeed, about the fifth and sixth commandments–they rest on a very deep and wide biblical foundation of teaching about why parents are important and why murder is wrong.  But to point this out is to highlight just how little is said on similar questions about private property.  Indeed, with the eighth commandment, we are perhaps on ground more similar to that of the ninth commandment–we are given to understand that lying is wrong, but the Bible gives us precious little guidance as to exactly how wrong, or when it might be legitimate, leaving us with an interminable maze of ethical dilemmas on the subject.  

Of course, someone might offer the rejoinder that the eighth commandment does not come to us in a vacuum at all, but in a context of quite extensive discussion of property rights and duties in Exodus through Deuteronomy.  But to point this out is simply to confirm my contention that an appeal to “Thou shalt not steal” helps very little in trying to vindicate private property rights in the modern, post-Enlightenment sense.  For the various laws surrounding property in the Pentateuch do not really enshrine a private property system, so much as one in which the various families of Israel each hold a plot of land from Yahweh as perpetual tenants.  As such, they have a great many constraints on their property “rights”; for instance, the right of alienability, absolutely fundamental to our conception of property rights, is very attenuated.  The system thus functions somewhat like a collective property system, and also has many elements of a common property system, such as of course gleaning laws, tithes, etc.  

(Note: this way of conceiving things offers a helpful and very elucidating corrective to the way I was trying to sort through Pentateuchal property law in my work at the beginning of this year.  Before, I was assuming all along that we were dealing with a private property system, and then trying to make sense of exactly how the various constraints might operate, and how they could in fact be legal constraints.  Jeremy Waldron’s book, however (plus a little help from The Hebrew Republic) has provided the necessary conceptual clarification–there is no pure unitary concept of private property to which all systems must conform, and so there is no need to try to conceive the Israelite system in those terms from the start.)

Moreover, it is worth remarking, as Patrick Miller is keen to point out in his article on the Ten Commandments in the book Having: An Account of Property and Possession in Religious and Social Life, that most of the specifications of the eighth commandment in the Torah, and hence it would seem the eighth commandment itself, are aimed more to protect the “have-nots” (that is to say, the relatively impoverished) against the “haves”, than to protect the haves against the have-nots.  Whatever our protestations to the contrary, modern defences of private property generally have the tenor of a protection of the haves against the have-nots.

On balance, then, the appeal to “Thou shalt not steal,” the cornerstone of the standard Christian response to challenges to PP, goes very little way toward answering the needs of a theory of private property.  It does not tell us why there should be private property, whence a private property system derives, how one justly becomes a private property owner and under what circumstances one’s ownership rights must be abridged, etc.  Indeed, it does not even establish a private property system per se, and in the context of the Torah, it seems intended to undergird a mixed system of property ownership that corresponds only partially to what we would intend by “private property.”