Monday, March 19, 2012

Natural law and the right to private property

My essay “Natural Law, Natural Rights, and Private Property” has just appeared over at Liberty Fund’s new Online Library of Law and Liberty website.  Also posted there are two responses to the essay by philosophers Bas Van der Vossen and James Bruce.  Give them a read, and while you’re there take a look at the rest of the website, where you’ll find lots of interesting stuff.

17 comments:

DNW said...

Good links

The Liberty Library has a number of interesting selections available, although it has not, and could not have as a practical or licensing matter, all essential texts.

Acton's writings were an interest of mine dating back to some college work, and his thoughts on the views of the positivists of his time and their intellectual tendencies, still resonate and retain significant relevance, as the fifth generation of this type wells up from the compost that was Mr. Buckle.

I think I might also have gotten Maitland's "Doomsday Book and Beyond" in print form from them as well. Though I am less certain of that.

In any event, anyone who has read through say, Michael Shermer's "Why People Believe Weird Things", will feel a sense of historical deja vu, in reading the criticisms Acton levels at Buckls.


"Taking a survey of literature from the pinnacle of his self-esteem, Mr. Buckle repeatedly affirms that ..."

http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2201&chapter=203914&layout=html&Itemid=27


And of more interest to the historiographer http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2201&chapter=203912&layout=html&Itemid=27

Pattsce said...

This was a great read. Thank you.

Crude said...

Great article. Pretty thought-provoking too. I didn't know Natural Law got into thse topics.

Charles Pearson said...

Very informative article.

I have a point of inquiry with regards property appropriation. Could you define exactly what you mean by "occupy" or "occupation"? In practice, this would seem to be a very vague notion. Does one occupy an un-owned resource simply by declaring it so? If someone traveled to a 10,000-acre un-owned island, declared the whole island as occupied by them, then went back to their home country, is this island now legitimately owned by them? If I understand you correctly that ownership can be attained prior to any labor being performed on the property, then it seems that this would have to be the case.

A. R. Diaz said...

Ed,

This is not on topic, but I just came into my faculty library and found (in the "newly ordered books" section) the latest issue of the journal Logical Analysis and History of Philosophy, Num. 14 "Special Issue: final causes and teoleological explanations" Are you aware of it?

I've just started reading it, but from skimming through all the articles, there seems to be no discussion of the aristotelian-thomistic model of final causality except, perhaps, the article by Stephan Schmid "Teleology and the Dispositional Theory of Causation in Thomas Aquinas", and the article by Arthur Ward's "Against formal causation in non-conscious nature". Hume, Kant and Spinoza, figure prominently in these essays. But the article by Arthur Ward seems interesting, it appears to recognize and defend formal causality in nature but limit it to a specific domain of nature (I suppose the claim would be something like formal causality is not as pervasive as Aristotle might've thought). But I haven't read it, and the abstract is quite ambiguous, so at the moment I can't assure this is what he claims.

Anyways, just thought I'd mention it.

Jules said...

I posted this comment in response to James Bruce article:

Hello. For your question, I think Feser's would say, first (1) there are "hierarquical" goods or ends and (2) a man who chooses Hello. For your question, I think Feser's would say that there are "hierarquical" goods or ends and that a man who chooses to fulfill a higher end, instead of a lower one, is not having a imoral act. For exemple: we have a natural end in nutrition and a higher end in taking care of our children. A parent who abstain from eating because otherwise his children would starve to death is not imoral, because the motive that he not fulfills his end of nutrition is to fulfill a higher end of securing the son life.

Hello. For your question, I think Feser's would say, first (1) there are "hierarquical" goods or ends and (2) a man who chooses to fulfill a higher end, instead of a lower one, isnt practicing an imoral act. For example: we have a natural end in nutrition and a higher end in taking care of our children. A parent who abstain from eating because otherwise his children would starve to death is not imoral, because the motive that he not fulfills his end of nutrition is to fulfill a higher end (and obligation) of securing the son life.

With that established, the answer follows: while having children is a good, it is not the supreme good (which, for Feser, presumably would be the supernatural end of humans having the knowledge of God). So a man, like a Catholic Priest, who avoids to have children for best serving the community in having knowlegde of God (a higher good in perspective) is not imoral in not fulfilling his lower obligation.

For the question of "So why everyone does not stop to have children to serving the community in having knowledge of God?", the answer is simple: in that case, human race would be extinct and we wouldnt have more people having this knowledge in subsequents generations. So the roles of reproduction and sacrifice for others are complementary to secure a better result in the long term.

(Of course, you can deny that, in practice, a priest cannot have children and make a good work, but this is not the point; let's say that is the idea that 'having children would mess up the priest job' is true. In that case, the answer can be constructed. Family is natural and is for every human, but having a family is, like every good with exception of the highest one, a subordinate good, and we need to have this in mind to evaluate if we should have children or not).

The general "lines" of the answer to your question would be, I think, along the motives i gave (and I hope this helps).

Jules

Jules said...

Uh, just noted the error in the edition of my answer. Skip the first paragraph and go directly to the second one.

Anonymous said...

Before one waxes lyrical about "liberty" one should Google The Trail of Tears.

Or read the book Columbus and Other Cannibals by Jack Forbes.

Or read the various books of Vine Deloria Junior.

Or read about the devastating cultural consequences for the natives of Central and South America of the Papal Bulls of 1455 and 1493. All of that systematic murder and plundered justified in the name of "God" and bringing "Jesus" to the "heathen savages".

Or read about the brutal trans-Atlantic slave trade. How many millions of Africans were shipped like cattle?

This one stark image summarizes it all.

www.dartmouth.edu/~spanmod/mural/panel13.html

Dianelos Georgoudis said...

In that article Ed writes: “ An individual’s personal capacities and potentials cannot be exercised and realized, respectively, without at least some stable body of resources on which to bring his efforts to bear; the freedom of action required in order to do this cannot exist unless he has permanent access to at least some of those resources;

I could agree with this, in this sense: That by natural law we should distribute access rights to resources in the way that best realizes all humans’ personal potentials. Which, it seems to me, is *not* what capitalism is about. Indeed, arguably, the implications of natural law come closer to communism.

Also, by natural law one has the right to stable access to resources for realizing one’s potential only when one needs them and as long as one needs them. Again, this implication does not comport with capitalism, where one may own property far beyond what one can possibly need, even when it causes others to have less property than they need.

Some further observations:

Permanent or stable access does not in any case entail property rights. While I pay my rent I have the right to permanent access to my flat – without actually owning it. I have permanent access to the air I breathe, but I don’t own it.

Strictly speaking we don’t really have *permanent* access to any resources – except perhaps to our cognitive faculties and freedom of will.

As any resources we have access to are a gift from God we don’t in any case “own” them. God owns them and lets us use them, and advices us to share them with others – even giving twice as much as what others ask from us.

Anonymous said...

D.G.:

"[B]y natural law we should distribute access rights to resources in the way that best realizes all humans’ personal potentials."

"[B]y natural law one has the right to stable access to resources for realizing one’s potential only when one needs them and as long as one needs them."

Does the phrase "by natural law" mean "in my opinion"?

Dianelos Georgoudis said...

Anon 2:37:

Does the phrase "by natural law" mean "in my opinion"?

No, it means “by natural law in my opinion”.

Only in this case I am quite confident about my opinion. I consider Ed to be a specialist in natural law ethics, and, as he writes in his essay, “an individual’s personal capacities and potentials cannot be exercised and realized, respectively, without at least some stable body of resources on which to bring his efforts to bear; the freedom of action required in order to do this cannot exist unless he has permanent access to at least some of those resources;”. My own understanding of natural law is sketchy, but it seems pretty clear to me that Ed is right, since our natural end is indeed oriented towards the realization of our various potentials (cognitive, creative, reproductive, moral, and so on), and for which realization some permanent access to some external resources is needed.

This principle of natural law is general, and thus applies to all people. Therefore it immediately follows that by natural law the right of access to external resources should be distributed among all people according to each one’s needs for realizing their potentials. It does not follow that all people should have equal rights though, since all people do not have the same potentials. The details appear to be complex and it is perhaps important to work them out better, but it is already pretty clear that capitalism does not comport well with natural law ethics.

If the reader sees some error in my reasoning above please let me know, for the result strikes me as surprising.

Tony said...

Ed: “ An individual’s personal capacities and potentials cannot be exercised and realized, respectively, without at least some stable body of resources on which to bring his efforts to bear; the freedom of action required in order to do this cannot exist unless he has permanent access to at least some of those resources;”

Dianelos: I could agree with this, in this sense: That by natural law we should distribute access rights to resources in the way that best realizes all humans’ personal potentials.

Dianelos, no that does not follow.
By "access to" Ed is not implying, or trying to imply, as a first principle a condition in which other persons are obliged to act to make resources within your grasp for use by your capabilities. He is not (I think) even addressing in any direct sense an economic system at all.

The natural law implicit in your human nature implies that you have an aptitude for, a moral and natural readiness, to hold possessively certain resources which those natural capacities require for activity. HOW those resources get into your hands is a further question. Many of the capacities cannot be exercised without the ability to direct the use, formation, and consumption of goods, and those actions of use, formation, and consumption require HOLDING the prerequisite stuff. Therefore, private property (the right to direct use of such goods) is inherent in human nature.

The question of which economic system gets the most such stuff into the most hands for the most human flourishing must come after the essential point that human nature implies private property. Because we know that private property is a necessary condition for proper human flourishing, that has certain derivative implications for economic systems. Namely, (assuming that human nature is integrated and that man is not by design a monster) the best system for overall human flourishing is one that takes into account the basic human need for private property, and that therefore economic models that rely on private property are the ones we should look to for ideal social flourishing. Socio-economic models that deny the basic principle cannot be considered to "get right" the secondary consideration of how to arrange the distribution of needed goods.

(By the way, because human society is found in many different conditions, it is theoretically possible that more than one system can be among the best for given situation - but not one can be among the best that denies the principle of private property.)

Dianelos Georgoudis said...

Tony,

You wrote: “HOW those resources get into your hands is a further question.”

But an important question.

We all agree that according to natural law an individual has the right to permanent access to the resources she needs in order to realize her natural potentials. Since resources are limited, the next question to ponder is what natural law says about how permanent access to resources should be distributed. I’d like to know you opinion about this question.

Incidentally, it seems clear to me that according to natural law an individual has no right to permanent access to *more* resources than she needs to realize her natural potentials. Why not? Because according to natural law her right of permanent access to resources is *justified* on her natural right to realize her potentials. Do you agree?

Incidentally, whether the answers to the above questions point to an economical system which is closer to capitalism or closer to communism is subsequent matter. And since that economic system may be quite different fro both communism and capitalism, perhaps that question is not even very useful. Let’s first get clear about what natural law implies, and let the chips fall where they may.

A final issue. To introduce the concept of “property” within the context of Ed’s original argument is perhaps not as easy as it seems. By natural law I have the right to permanent access to the air, because by nature I need to breath in order to realize my potentials. But I don’t say that therefore the air is my “property”. The concept of property as normally used entails not only permanent access but also exclusive access, but exclusive access appears not to be required by natural law. After all, in those cases where permanent but also shared access to some resource is sufficient for realizing one’s potentials, natural law does *not* justify the right to exclusive access. So perhaps Ed has not quite demonstrated the natural law implies the right of property even in the case of a single individual.

Tony said...

By natural law I have the right to permanent access to the air, because by nature I need to breath in order to realize my potentials. But I don’t say that therefore the air is my “property”. The concept of property as normally used entails not only permanent access but also exclusive access, but exclusive access appears not to be required by natural law. After all, in those cases where permanent but also shared access to some resource is sufficient for realizing one’s potentials, natural law does *not* justify the right to exclusive access. So perhaps Ed has not quite demonstrated the natural law implies the right of property even in the case of a single individual.

Well, let's take air. But let's be more general than usual: take into account all possible options. For example, suppose that we have a system of 300 cities on the Moon, in which "frontier" settlers carve out new tunnels using borrowed equipment, mulch the rock into soil, seed it with micro-organisms, plant plants, and harvest the oxygen for THAT settler's individual use. Of course, if he runs a persistent surplus, he might sell some of the oxygen to others.

My only point is that air might not be free, might become not automatically recycled and might be a consumable.

In order to speak about the issue, we have to distinguish between common goods and proper goods. Proper goods are typically those goods which, when I have them and use them they become consumed by the use and then they are not available to anyone else. Food and (on the Moon especially,) air are proper goods. Common goods are goods which, when I have them this does not interfere with someone else holding the very same good. Knowledge is an example: when I know the Pythagorean theorem and use it, this does not interfere in the least with someone else ALSO knowing it and using it at the very same time. Oxygen is a proper good: when I breathe I use up the oxygen and then nobody else can use it - until the carbon dioxide is changed back and the oxygen is freed, until it has been changed and made ready for use.

Natural law implies private property: if I take a natural resource that has absolutely NO claims by another, and I mold it into something useful by my creativity and my energy and my labor, I cooperate with God in His ongoing activity of creating good in and of the world, and I MAKE the thing mine. If I walk out into the true frontier, cut down a sapling, and make a bow and arrow, they are mine. They are mine by reason of the principles of private property even if I don't need them to fulfill my needs. For example, if I am a hobbyist bow-maker and I have 20 other bows, and I have no intention to ever actually USE this bow, it is STILL mine. One of the reasons is that by being my own private property, I can then make a true, real gift of it to a friend in need of a bow for his uses. Having surplus is the foundation of giving without expectation of receiving back. So, true donative, charitable giving would be impossible if it were not first possible to OWN in surplus beyond your personal needs.

Tony said...

We all agree that according to natural law an individual has the right to permanent access to the resources she needs in order to realize her natural potentials. Since resources are limited, the next question to ponder is what natural law says about how permanent access to resources should be distributed. I’d like to know you opinion about this question.

But let's not equivocate on "resource" here, OK? In one sense, a resource is a "natural" resource if it is something that has been produced by nature outside of all of man's activities, and lies ready for someone, anyone, whoever comes by, without anyone having any prior claim on it. Once a natural resource has been worked by a human, has been changed, moved, formed, improved by man, it is still a "resource" but is not really a natural resource. If I see an apple in a wild tree on nobody's land, that's a natural resource. If I pick it, I have applied energy to change it's condition and make it more ready for use. If I then peel it, slice it, and put it into dough to make an apple tart, I have made a new resource, no longer a natural resource. The fruit of my labor (in those conditions) is mine even if that tart is wholly surplus to me. The question of distribution of resources takes on a vastly different meaning when you speak of absolutely natural resources and of made, ready to consume resources.

You cannot begin to ponder the question of how to distribute made resources without first recognizing the prior claim: they are made by someone's labor, and thus they belong to someone before they can be under consideration for re-distribution to someone else.

And a critical point is that, by and large, an ABSOLUTELY natural resource is simply not something ready to be USED, usually it has to be changed somewhat. At the least, it needs to be transported, collected (try using one wheat grain), killed, cooked, or something. So, it is nonsensical to speak of a bare right to generic "resources" as if a person had a natural right to MADE resources like flour and butter and bread - such a natural right would mean that we have a natural right to other people's labor, whether they ever do that labor or not.

No, we need to be more cautious: Ed's sense of having a right to permanent access to resources is more limited. When a person HAS found a wholly natural resource like a sapling that nobody has any kind of claim over, and has made that natural resource into private property by applied labor making it a bow and arrow, the change and making gives her claim for permanent access to it and its use. NOTHING about this suggests that she has a claim on a made resource that she did not herself make. The requirements of her faculties and flourishing imply needs, but do not imply claims on made resources separated from her own making.

Dianelos Georgoudis said...

Tony,

I’d only like to comment to your point about knowledge. In our current system knowledge can be, and indeed very often is, private property. What does natural law say about this? The details are certainly complex.

But what strikes me as quite obvious, is important, and as it seems to me you are not commenting on, is that according to natural law permanent access to limited resources should be distributed among all people according to what they need in order to realize their potentials.

Tony said...

I’d only like to comment to your point about knowledge. In our current system knowledge can be, and indeed very often is, private property. What does natural law say about this? The details are certainly complex.

No, knowledge of its own nature is always a common good. The "system" cannot make it over into a private good in some cases by changing its nature, because the system cannot change its nature at all. However, what the system can do - and what it has done since the early days of this Constitution, is to RESTRICT the commercial uses of new knowledge, and to ASSIGN the commercial benefits thereof, to private individuals for a period of time - i.e. patent laws. These laws do not make the knowledge so affected to be no longer common goods for the period - it remains true that when I understand Toyota's special motor-battery concept for its Prius, my knowing it doesn't interfere with your knowing it. The sheer knowing is not consumed or alienated when one person fulfills himself by knowing.

There are some libertarians who disagree with the theory that assigning restrictive intellectual "property" rights through patents and copyrights actually promote invention and production of such "property". But nobody thinks that the goods so created, whose commercial benefits are assigned temporarily, are in their very nature private goods.

But what strikes me as quite obvious, is important, and as it seems to me you are not commenting on, is that according to natural law permanent access to limited resources should be distributed among all people according to what they need in order to realize their potentials.

I am commenting: I am saying that it just isn't true. Limited resources - does that include the resources that exist because some human being used his energy on raw materials and MADE something that is useful? Then that something is not to be *assigned* to others, simply by natural law alone, merely on account of their need for some of that sort of resource in order to fulfill themselves. That's not how natural law works, and you have not laid your finger on a valid principle.

In this context, I think the most you can say about what natural law PRESCRIBES is that man has no natural authority to OBSTRUCT another from obtaining - by suitable means - that which he needs to fulfill himself. Given that natural law FIRST assigns, to the man who makes a new product out of unclaimed raw materials, private property in the product, the "suitable means" cannot include merely taking. Therefore, in first order, the "suitable means" refers to other methods, like asking for a gift, or exchanging value for value.

Natural law does not assign specific property to individuals, and it does not prescribe that all individuals are to be assigned a proportionate share of all goods.

Natural law prescribes that a man use his energy to obtain the goods that fulfill him. For that reason, he is not "assigned" any goods simply due to natural law.