Yesterday we
looked at the question of whether private property is a natural right, and what
it means for something to be a natural right.
After looking into the matter we discovered (okay, we knew all along,
but we always learn a few new things each time we look at something from a
different perspective) that 1) private property is a natural right, and 2) a
natural right is something inherent in human nature and cannot be taken away.
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| He may be better or worse than human, but he's not human. |
We also implied
what we did not state specifically: that the natural law is not something that
can be changed. The exercise of natural
rights can be changed, certainly, but not the general norms of the natural
law. This is because the natural law is
based on what reason discerns about human nature, and — obviously — if you
change human nature what you have is not human.
It may be better than human, or it may be worse, but it is not human.
For Christians,
Jews, and Muslims, there is another reason.
Human beings are created in the image and likeness of God. God is a perfect Being and therefore
unchanging — change necessarily implies movement toward or away from
perfection. Since God is the natural
law, the natural law cannot change.
That is not to
say the exercise of a natural right
is equally absolute and unlimited. That
would be foolish. No one who understands
the basics of natural law theory from an Aristotelian-Thomist orientation would
ever say that the exercise of any right, natural or otherwise, can ever be
unlimited or absolute.
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| A distinction between right and exercise. |
No, the exercise
of a natural right (or any other right, for that matter) is “socially
determined.” That means that the owner’s
wants and needs, the needs of other individuals and groups, and the demands of
the common good itself define how an owner may use what is owned. In general, no one may exercise private
property or any other right in any way that harms the right holder, other
individuals and groups, or the common good.
For just cause
and through due process, sometimes the exercise of a right can be taken
completely away. Ordinarily, however,
the exercise of a right must never be defined in any way that nullifies the
underlying right or any other right for anyone.
Thus, a right to choose (which comes under liberty or freedom of
association) is a natural right, but it should never be defined in any way that
it infringes on or violates anyone else’s freedom of choice or any other right.
For example, you
cannot legitimately choose to pick my pocket because you want money, any more
than you can legitimately choose to abort your child for any reason. In the former case you violate my right of
private property and of choice if I choose not to let you have my money, while
in the latter case you violate your child’s right to life. The fact that you might get laws passed
permitting or even mandating redistribution or abortion does not change the
objective evil of theft or murder.
And why is that?
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| Mason: Life, Liberty, and Private Property. |
Because a right
is not the thing, what lawyers call the res
— Latin for “thing.” No, a right is control and enjoyment of the thing — the power to do or not do some act or acts
in relation to others. Thus, the right of
life is not itself life, but 1) the absolute right to be alive, and 2) the
socially defined rights of access to the means of sustaining life. The right of liberty or freedom of
association/contract is 1) the absolute right to choose, associate, or enter
into contracts, and 2) the socially determined bundle of rights that define how
and with whom you choose, associate, or contract.
Thus, we do not
want to confuse the right, with the thing to which the right applies, any more
than we want to confuse the right to
a thing, with the rights of a
thing. As the solidarist jurist and
political scientist Dr. Heinrich Rommen said (him being a student of Father
Heinrich Pesch, S.J., and co-organizer of the Königswinterkreis discussion group that sent Father Gustav
Gundlach, S.J., and Father Oswald von Nell-Breuning, S.J., to the Vatican to
consult on the writing of Quadragesimo
Anno in 1931),
[P]ositive human laws are absolutely necessary for determining the
further inferences from the first principles in the interest of a more exact
and readily discernible establishment of order and for the setting up of
institutions needed for community life.
The natural-law prohibition of adultery implies at the same time an
affirmation of marriage and of the general norms that are most needed for its
functioning as an institution. “Thou
shalt not steal” presupposes the institution of private property as pertaining
to the natural law; but not, for example, the feudal property arrangements of
the Middle Ages or the modern capitalist system. Since the natural law lays down general norms
only, it is the function of the positive law to undertake the concrete,
detailed regulation of real and personal property and to prescribe the
formalities for conveyance of ownership.
(Heinrich A. Rommen, The Natural
Law: A Study in Legal and Social History and Philosophy. Indianapolis, Indiana: Liberty Fund, Inc., 1998,
59.)
And private
property?
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| "Property in everyday life, is the right of control." |
It is almost
axiomatic when talking about property, private or otherwise, that most people
confuse the thing, the res, with
control and enjoyment of the thing. In
every day speech, and often in legal settings as well, “property” is construed
as the thing owned, rather than the right to be an owner, or the bundle of
rights that define the exercise of ownership.
Not surprisingly this
causes massive confusion — and why in Just Third Way writings we have made
every effort to ensure that we use the word “property” properly, and even then
we may sometimes slip up inadvertently, especially in off-the-cuff comments. So what is private property in natural law,
and thus the Just Third Way and Catholic social teaching?
If you grasped
the rights to life and liberty, you have probably already guessed the true
understanding of private property — and guessed correctly. The right of private property is 1) the absolute
right every human being has to be an owner, and 2) the socially determined and
necessarily limited bundle of rights that define how an owner may use what is
owned.
To go into the
matter more deeply, here is what Louis Kelso had to say about it:
Before examining Marx’s second critical error, it may be helpful to
take note of what the concept “property” means in law and economics. It is an
aggregate of the rights, powers and privileges, recognized by the laws of the
nation, which an individual may possess with respect to various objects.
Property is not the object owned, but the sum total of the “rights” which an
individual may “own” in such an object. These in general include the rights of
(1) possessing, (2) excluding others, (3) disposing or transferring, (4) using,
(5) enjoying the fruits, profits, product or increase, and (6) of destroying or
injuring, if the owner so desires. In a civilized society, these rights are
only as effective as the laws which provide for their enforcement. The English
common law, adopted into the fabric of American law, recognizes that the rights
of property are subject to the limitations that
(1) things owned may not be so used as to injure others or the
property of others, and
(2) that they may not be used in ways contrary to the general
welfare of the people as a whole. From this definition of private property, a
purely functional and practical understanding of the nature of property becomes
clear.
Property in everyday life, is the right of control. (Louis O. Kelso, “Karl Marx, the Almost
Capitalist,” American Bar Association
Journal, March 1957.)
With the Aristotelian-Thomist
understanding of natural law we looked at yesterday, and the similarly
Aristotelian-Thomist understanding of private property we looked at today, we
are ready to understand the nature and meaning of socialism, and why it
embodies a theory completely alien to the Aristotelian-Thomist framework and
understanding of what it means for something to be true — which we will look at
tomorrow.
#30#