Aquinas and Legal Realism: The Roots of Private Property

Catholic Social Ethics

Earlier this week, two prominent Catholic political bloggers, Elizabeth Stoker Bruenig and Pascal-Emmanuel Gobry (better known as Pegobry, or just PEG), engaged in a short but sharp exchange on the subject of property rights (see here, here, here, and here). There is not space here for a full discussion (see a longer version of this post here if you are interested in more), but I will seek to add some insight from Thomas Aquinas, who has perhaps done more than anyone to inform the Catholic Church’s reflection on these issues.

Earlier this week, two prominent Catholic political bloggers, Elizabeth Stoker Bruenig and Pascal-Emmanuel Gobry (better known as Pegobry, or just PEG), engaged in a short but sharp exchange on the subject of property rights (see hereherehere, and here).  There is not space here for a full discussion (see a longer version of this post here if you are interested in more), but I will seek to add some insight from Thomas Aquinas, who has perhaps done more than anyone to inform the Catholic Church’s reflection on these issues.

The debate between Ms. Bruenig and Pegobry concerned “legal realism,” which is to say the idea that property rights are nothing more than creations of the law, and thus in principle alterable at the law’s discretion.  Whereas Ms. Bruenig argued compellingly that St. Augustine propounded such a view, Pegobry objected, among other things, that whatever Augustine may have thought regarding property and legal realism, we would do well to disregard it in favor of the medieval and post-medieval Catholic teaching on the subject:

“I find myself much more at home with what I take to be the ‘generic’ Catholic understanding, heavily influenced by Scholasticism, of private property as a kind of God-granted stewardship, which issues in both a natural right of private property and a moral duty to use this faculty in accord with the will of God.”

It is not very clear what Pegobry has in mind with this vague invocation of a “’generic’ Catholic understanding”.  The first thing to say here is that there is not really a “generic” understanding—that is rarely so in the history of thought.  Rather, you have the common Patristic view that private property is a dubious product of the Fall,[1] which Christian communities ought to strive to transcend (Augustine is of course somewhat more pessimistic and “realist” on this point), then in the High and late Middle Ages, ferocious conflict (including real-world conflict) between the modified-Aristotelian Thomist view, the radical-Patristic Franciscan view, and a sort of proto-modern papalist view,[2] with diversity increasing as we move into modernity.  Even the papal encyclicals that undergird Catholic Social Teaching do not speak with one voice on the subject.  Rerum Novarum is notoriously influenced by Lockean ideas, but later encyclicals have moved away from this.[3]  All of this to say that we need thorough and thoughtful wrestling with these issues nowadays, rather than blithe reassurances that there is some basic common-sense view that surely every sane person must share and that more or less settles the issue.

 

However, to the extent that we could speak of a “‘generic’ Catholic understanding” it would have to be that of Thomas Aquinas, whose synthesis was enormously influential on succeeding centuries and is generally given at least lipservice in Catholic treatments of the subject today, even when it is not carefully attended to.  Indeed, I would hazard the claim that properly understood, the Thomist view could be taken as a rough consensus statement for most serious Christian reflection on property through the centuries.

Pegobry is right to highlight the theme  of “God-granted stewardship” in the Thomistic understanding of private property, but just what does he mean when he says that it “issues in … a natural right of private property”?  That, after all, is what this whole discussion is really about: is there such a thing, and whence does it arise?

Thomas, actually, is really not all that opaque on the question.  He offers a rather clear distinction between use (usum) and administration(potestas procurandi et dispensandi).  This generates two distinct sets of rights.  First is the right of humankind to take, use, and enjoy the fruits of the earth.  This is a natural right in the fullest sense of the term—pure and simple, everyone is born into the world with the right to take some fruit off a fruit tree if they’re hungry, just as they’re born free to speak, marry, etc.  But of course, this right is common and universal, and so is not really what we would call a property right; in fact, it is kind of the opposite.[4]  It is what we could call a pre-political right, and can of course be modified some by subsequent arrangements, but is always there in the backdrop (so that Aquinas contends that in cases of necessity—if you really need that apple or that loaf of bread—this natural right reasserts itself and trumps all others).

The second is the institution of property rights, whether private or public.[5]  This is where Aquinas parts company somewhat from many of the Fathers.  Whereas they asserted the primordial right of common use, and judged that only sin could account for compromising such a thing with the distinction between meum and teum, Aquinas was more Aristotelian.  Even without sin, property rights might be a good and useful thing, although perhaps only sin made them necessary (this is one point where Aquinas could be a bit more clear).  This was because, he deemed, a distinction between who administered what could actually help further the original natural right of common use—that is to say, by avoiding confusion and promoting a sense of personal responsibility (to use an unfortunately now-hackneyed term), property rights could actually help more effectively bring the fruits of the earth into general circulation.  Thus, Aquinas could speak of property rights in this sense as natural in the sense of being not contrary to nature, or even in accord with nature, but they were not natural in the fullest sense, because they were not spontaneously present in nature, but “derivatory and secondary” (in the words of Anthony Parel), arising out of subsequent human arrangements.  Conversely, although common ownership is natural in the sense that it comes first and supplies the backdrop for future ownership arrangements, it is not natural in the sense that the natural law

“dictates that all things should be possessed in common and that nothing should be possessed as one’s own, but because the division of possessions is not according to natural right, but, rather, according to human agreement, which belongs to positive right, as stated above. Hence the ownership of possessions is not contrary to natural right; rather, it is an addition to natural right derived by human reason.”[6]

Derived by human reasonAccording to human agreement.  As John Finnis summarizes,

“The moral or juridical relationships to such an entity that we call property rights are relationships to other people. They are matters of interpersonal justice. Arguments for founding property rights on alleged ‘metaphysical’ relationships between persons and the things with which they have ‘mixed their labour’, or to which craftsmen have ‘extended their personality’, are foreign to Aquinas.[7]

Thus Aquinas, too, would seem to be among the legal realists.

 

This will afford us some of the needed clarity to sort through some of Pegobry’s other comments.  He does not seem clear on why it is that property rights should be subject to “legal realism” in a way any different from other rights that we hold dear.  For instance, he describes Ms. Bruenig’s position as “the position that human beings have no intrinsic rights (at least in the domain of property, although why this should be true about property and not other rights is unclear) that human institutions and laws are bound by higher laws to respect, and that such rights are “totally” fictitious creations of the sovereign.”  Later he uses the analogy of the right to life, and the state’s responsibility to protect it, and he also appeals to “the declaration of the Ecumenical Council of Vatican II that every human being, as an image-bearer of God, has transcendent dignity, one consequence of which is the existence of natural rights that human institutions are bound by divine law to respect.”  He also asks,

“is it correct to say that people have a right to private property in the same way that we say they have a right to speak freely, or assemble peaceably, or any of those rights the recognition of which we typically take to be a mark of civilization? That is to say, rights, that (conceptually rather than historically) ‘preexist’ the state in the sense that the state is duty-bound to respect them not on grounds of expediency but on grounds of higher law.”

This is slippery stuff.  In particular, one worries about the invocation of “those rights the recognition of which we typically take to be a mark of civilization,” given the way in which human rights discourse has sometimes been used rather imperialistically by national and international authorities.  But leaving those aside, what about the specific rights here asserted—life, liberty of speech, liberty of assembly?  All of these we might quite justly associate with the “transcendent dignity” that we have as “image-bearers of God,” because they all seem to essential to a basic realization of our human nature.  Obviously we were born into the world for the purpose of living, and without that right we have no others.  And rational thought, and speech to share that thought, are essential to what it means to be human.  Likewise, as fundamentally social animals, we must be able to assemble together with others in pursuit of common ends.  For the state to legislate against such rights in general would indeed be intrinsically unjust, a violation of natural rights, because such rights arise not out of means to an end, but as part of the end of being human.

But is there anything equivalent in the neighborhood of property rights?  Well only, it would appear, in the domain of common use.  This, Aquinas is clear, is a fundamental right of being human, because without it, without the power to appropriate to our use such fruits of the earth as we need for health and flourishing, we could not live at all.  And thus it is the case that there are natural, intrinsic, pre-political rights pertaining to the “transcendent dignity” of human beings as image-bearers which states are bound, as a matter of principle, to respect.  The problem is they are not the rights of existing de facto property owners, or would-be Lockean property-acquirers, but rights prior to these, which will condition and limit these.[8]   This, presumably, is what Ms. Bruenig is up to when she explains that the normative feature in the property picture is to “make sure the poor are supported.”  (While she follows this with, “Because Christ commands it,” it is clear more generally from her exposition of Augustine that it is because God created the world and intends it for the use of all, as Aquinas also argued.)

Thus, to Pegobry’s insistent question as to whether, according to Ms. Bruenig, “under correct Christian ethics, all property is contingent and rights of property . . .  have only instrumental and not intrinsic value,” it must be answered, in Thomistic terms at least, “Yes, instrumental to the service of the common use of humankind.”  Indeed, it is difficult to conceive, within such a framework, of just what sort of “intrinsic value” such rights could have.

 

(For some fuller reflections on where else might try to derive such “intrinsic value” from, see my longer version.)

 

[1] See for instance Anton Herman Chroust and Robert J Affeldt, “The Problem of Private Property According to St. Thomas Aquinas,” Marquette Law Review 34:3 (1950), 155-75.

[2] See Joan Lockwood O’Donovan, “Christian Platonism and Non-proprietary Community,” in Bonds of Imperfection (Grand Rapids: Eerdmans, 2003), 97-120 for a particularly insightful discussion.

[3] Matthew Habiger, Papal Teaching on Private Property, 1891 to 1981 (Lanham, Md.: University Press of America, 1990), provides a useful, though not altogether reliable, discussion.

 

[4] See ST II-II q. 66 a. 1 for Aquinas’s exposition of this right.

[5] This occupies Aquinas in ST II q. 66 a. 2.

[6] ST II-II q. 66 a. 2 ad 1.

[7] John Finnis, Aquinas : Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 189.

[8] Anthony Parel notes that for Aquinas, private property is “derivatory and secondary” right, with “the obligation to realize the primary purpose of property, namely, use,” so that, “if there is conflict between use and ownership, there was no doubt in Aquinas’ mind which should prevail.” (“Aquinas’ Theory of Property,” in Theories of Property, ed. Anthony Parel and Thomas Flanagan [Waterloo, ON: Wilfrid Laurier University Press, 1979], 96.)

One thought on “Aquinas and Legal Realism: The Roots of Private Property

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Share This

Share this post with your friends!