 Welcome to George H. Smith's Excursions into Libertarian Thought, a production of Libertarianism.org and the Cato Institute. The Secularization of Private Property In the previous two chapters, I explained the traditional Christian view of property, according to which there existed only common property in the earliest societies, as illustrated in the biblical account of the Garden of Eden in various Roman accounts of the Golden Age. Private property came about only after Adam's fall into sin had thoroughly corrupted human nature with avarice, pride, and other evil tendencies that were absent in pre-Lapsarian man. God mandated private property, along with government and slavery, for post-Lapsarian man as a punishment and remedy for sin. Here I explore some features of secular accounts of the justification and origin of private property, especially as they appear after 1600 in the writings of various Protestant philosophers of natural law, most notably Hugo Grotius, 1583 to 1645, and Samuel Pufendorf, 1632 to 1694. To call these accounts secular is not to say that they omitted God from their accounts of natural law. Consider this famous passage by Grotius, from the Prolegomina to his celebrated and highly influential text, The Rights of War and Peace, 1625. What we have been saying about natural law would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God and that the affairs of men are of no concern to him. Although Pufendorf and some other modern natural law philosophers disagreed with Grotius in this matter, we should not suppose that Grotius was proposing an atheistic system of natural law. In fact, the position taken by Grotius had been around for many centuries, especially in the writings of Thomistic philosophers. Natural law, in the theory defended by Thomas Aquinas, 1225 to 1274, is the part of divine law that is knowable to human reason without the aid of divine revelation, such as the Bible. Even God could not change the fundamental precepts of natural law according to this approach, because doing so would require that God contradict himself, which is something that even omnipotence cannot do. God created human beings in their environment, and the basic precepts of natural law emerged necessarily from these elementary facts. True, God could have created man with a different nature than he now has. In that case, different natural law principles might apply. But given human nature as God created it, the fundamental precepts of natural law are permanent and unchangeable, and every human being can know them through the use of reason. In opposition to this intellectualist school of thought, as it is often called, stood the theory known as Voluntarism, so called because of its emphasis on the primacy of God's will over his intellect. Voluntarism is often associated with Dunn-Scotus, 1266 to 1308, and William of Ockham, 1287 to 1347. In the Voluntarist scheme, God's will is primary and literally can accomplish anything, including transforming something that is currently evil into something good and vice versa. Consider the age-old question. Is something good because God wills it, or does God will it because it is good? The Voluntarists embrace the first part of this dichotomy, claiming that actions are good or evil merely because God wills them to be so. Thus, if God were to will that rape and murder are morally good, then those actions would become morally good. Aquinas and other intellectualists disagreed, of course. Even God could not render rape and murder morally good, given human nature as he created it. After creation, therefore, God wills something because it is good. His willing per se does not make it so, or to speak more precisely, God's will necessarily coincides with the good because having willed that humans should possess certain characteristics, he simultaneously willed the moral implications of those characteristics. The fundamental moral precepts of natural law could change only if human nature itself were to change. We see traces of this approach in the theory of original sin and its influence on the Christian theory of property rights. Given human nature in its undefiled, prelapsarian state, common property was a precept of natural law. But original sin drastically changed human nature, so God mandated special institutions, namely private property, government, and slavery, that overrode the original natural law. These institutions were needed to control and punish humans who had become vitiated with sin. Some historians, most notably Ernst Truitsch in his classic work, The Social Teachings of the Christian Churches, 1911, have dubbed the divine commands for sinful human beings a secondary natural law, but there has been some controversy over whether that label is accurate. Rather, many theologians view those commands as a type of divine positive law, not as a species of natural law. Although I am personally fascinated by this and similar controversies within Christianity, I doubt if many of my readers, especially my fellow atheists, share my interest in such arcane theological disputes. I will therefore avoid detours into technical points as much as possible, and rest content with generalizations. Returning to Grotius, he claimed that the precepts of natural law would remain valid even if there were no God. That places him squarely within the intellectualist tradition of Aquinas and others. Grotius also wrote in the Prolegomena, shortly after his notorious statement about God, the law of nature of which we have spoken, comprising a like that which relates to the social life of man and that which is so-called in a larger sense, proceeding as it does from the essential traits implanted in man, can nevertheless rightly be attributed to God because of his having willed that such traits exist in us. Thus, as noted earlier, the secular approach to property rights did not altogether exclude God from the picture, but the secular approach, generally speaking, rested its claims on reason and history, not on biblical authority, and certainly not on papal decrees, as Catholic writers on natural law frequently did. Many secular philosophers of natural law, such as Grotius and John Locke, were liberal Protestants who rejected a literal reading of the Bible. Hence, Grotius regarded Adam as a general type, not as a specific individual. Adam represents human beings before the evolution of private property. Likewise, the story of Cain and Abel, a tiller of the ground and a keeper of sheep respectively, according to Genesis 4-2, symbolizes an early division of labor that resulted in violent conflict, and the tree of knowledge from which Adam and Eve ate the forbidden fruit, symbolizes a growing awareness of moral options, both good and evil, from which man must choose. Although Grotius agreed with conventional Christian teaching that mankind, in his primitive state, was probably morally innocent, he speculated that this innocence resulted from an ignorance of vice, not from a commitment to virtue. The vicious tendencies that many Christians attributed to original sin were, for Grotius, the consequence of the greater number of options and sources of pleasure that attended more advanced societies. With more choices and more appealing things to choose from, came greater temptations. As a number of writers in the Grotian tradition would later observe, if there was virtually no theft in early primitive societies, it was because they produced nothing worth stealing. Moreover, there is no hint of original sin or its effects on human nature in the accounts of Grotius or other secular philosophers of that era. Although Grotius cited Genesis and other parts of the Bible from time to time, he treated them as historical sources, exactly as he did when citing Livy, Tacitus, Seneca, Cicero, and other pagan writers. When it came to the issue of common and private ownership, the key passages were those found in the first chapter of Genesis, as in verse 26, Revised Standard Version. Then God said, Let us make man in our own image after our likeness and let them have dominion over the fish of the sea and over the birds of the air and over the cattle and over all the earth and over every creeping thing that creeps upon the earth. Since God granted dominion over the earth and its non-human creatures to mankind in general, this decree became a pillar passage used to support the claim that pre-Lapsarian man owned everything in common. Robert Filmer, John Locke's primary target in two triatuses of government, was a curious exception. Filmer maintained that God's grant of dominion over the earth was made to Adam as an individual, so private property was established at the outset. For centuries therefore, controversies over common versus private property hinged on the meaning of dominion. Whatever we may think of the source of these controversies, pursuing debate served a valuable role in clarifying the meanings of common and private property. Some leading Protestant theorists of natural law made an important innovation in this field. They distinguished between a positive and a negative community of goods. In his massive and highly influential work on international law, On the Law of Nature and Nations, Samuel Pufendorf wrote, It is clear that before any convention of men existed, there was a community of all things, not indeed, such as we have called positive, but a negative one, that is, that all things lay open to all men, and belong no more to one than to another. In other words, in the primitive condition of mankind, all natural resources were unowned, and all people possessed an equal right to use those unowned goods. Grodius had previously defended this notion of a negative community of goods with equal use rights, but his explanation was not as clear as that given by Pufendorf, and it was Pufendorf who first applied the terms negative and positive to this issue. A positive community of, say, land would have been akin to joint ownership, a condition in which every person would have a say in how land was used. It was this conception, as used for example by Herbert Spencer, that made private property and land, or any other natural resource, very difficult to justify. See my discussion in Herbert Spencer, Henry George, and the land question, Part 2. But the conception of a negative community of goods, as defended by Grodius, Pufendorf, and many other modern writers on natural law, was a different matter entirely. Here the common right was not one of joint ownership, but of use of fruct, or the equal right to use unowned property that had not already been appropriated by others for their use. A notion of private property was latent in this notion of a negative commons and a universal use right, as Pufendorf pointed out. But since things are no use to men unless at least their fruits may be appropriated, and this is impossible if others as well can take what we already by our own acts selected for our uses, it follows that the first convention about private property rights between men was about these very concerns to the effect that whatever one of these things which were left open to all and of their fruits, a man had laid his hands upon, with intent to turn it to his uses, could not be taken from him by another. Grodius had made the same point. The primitive communism discussed by many ancient writers was not a type of joint ownership. Rather, the common right in question was to be use of all things, and this common use right served the same purpose in primitive societies that private property would later serve in more advanced civilizations. Suppose I pick some apples from a tree with the intention of eating them. Prior to my action, every other person had an equal right to use those apples, but after I appropriate them it would be unjust for anyone to take those apples from me. At that point in time I may be said to have dominion over those apples. The fact that I must consume the apples in the course of using them, thereby leaving nothing behind for others to use, does not violate the rights of everyone else, for no one had property rights in the apples before I used them. Suppose in contrast that the apple tree was already the private property of another person. In that case I would be committing theft if I picked the apples without the owner's permission. According to Grotius, the fact that food and drink must be consumed in the very act of using them, thereby leaving nothing behind for others, implies the notion of private property. Over time this notion was gradually extended to other resources. As Grotius explained in a very interesting passage in Commentary on the Law of Prize and Booty, it is evident that the present-day concept of distinction and ownership was the result, not of any sudden transition, but of a gradual process whose initial steps were taken under the guidance of nature herself. For there are some things which are consumed by use, either in the sense that they are converted into the very substance of the user and therefore admit of no further use, or else in the sense that they are rendered less fit for additional service by the fact that they have been once made to serve. Accordingly, it very soon became apparent in regard to articles of the first class, for example food and drink, that a certain form of private ownership was inseparable from use. For the essential characteristic of private property is the fact that it belongs to a given individual in such a way as to be incapable of belonging to any other individual. This basic concept was later extended by a logical process to include articles of the second class, such as clothing and various other things, capable of being moved or of moving themselves. Because of these developments, it was not even possible for all immovable things, fields for instance, to remain unapportioned, since the use of such things, while it does not consist directly in their consumption, is nevertheless bound up in some cases with purposes of consumption, as it is when arable lands and orchards are used with a view to obtaining food or pastures for animals intended to provide clothing, and since there are not enough immovable goods to suffice for indiscriminate use by all persons. Much more remains to be said about the secular conception of private property, and I continue this discussion in the next chapter. For more information and philosophy and history, visit www.libertarianism.org.