Blackstone, in his Commentaries, speculates that people avoid thinking about the basis for private property, because they are afraid that, if their claim to own something were examined closely, flaws would come to light. Better not to upset a settled presumption.
He had in mind not simply mundane worries about liens, of the sort handled today by title agents. He was concerned, conceptually, with how claims of ownership are ultimately anchored.
For there’s a regress problem. Consider an asset, say, my smartphone, which I say I own “by right” on the grounds that it is part of something, which I acquired free and clear by a legal process from another entity (Verizon), which owned it “by right.” And yet that entity (Verizon) will give the same kind of reason for its claim, and so on, and so on. Each of us just pushes the claim back: each owns something “by right” only if the conveyor owned it “by right.”
Human nature being what it is, we might worry that, if we keep tracing the chain back, we’ll find a gap – that someone in the past acquired the asset by force or by fraud. And where does the chain end? In what is it ultimately anchored?
Note that ownership implies a “rational” power to acquire and dispose, not a “physical” power. True enough, right now it is within the physical power of my hand to pick it up. But the legal or rational power is a “claim of reason”: a neighbor who tries to take it away from me “has no power” to do so and cannot “justify with reason” his doing so.
We tend to be unclear about the distinction between rational and physical power because in a relativistic culture there really are no claims to right, because ultimately nothing has a reason. Eli Wiesel tells the story – the reductio ad absurdum – of how in Auschwitz he wanted to break off an icicle outside the barracks window to refresh himself, and a guard knocked it out of his hand. Warum? he pleaded – “For what reason.” The guard’s reply: Hier ist kein Warum. “Here there are no reasons.” And yet do we have ultimate reasons?
The classical and Christian view was that any individual’s claim to own something “by right” depends upon the possession of the whole world by the human race “by right.” Blackstone explains:
In the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man “dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moves upon the earth”(Gen 1:28). This is the only true and solid foundation of man’s dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. (Emphasis added.)
Aquinas makes the same point, but, since he’s classical and not “voluntaristic,” he explains this original gift as instantiated in the dominion which a rational creature rightly exercises over non-rational creation. (See ST II-II, q. 66)
How precisely individuals may appropriate something given to the human race is a longstanding philosophical question. John Locke famously said it’s through “mixing one’s labor” with the world. Leo XIII in Rerum Novarum says something similar:
Now, when man thus turns the activity of his mind and the strength of his body toward procuring the fruits of nature, by such act he makes his own that portion of nature’s field which he cultivates – that portion on which he leaves, as it were, the impress of his personality; and it cannot but be just that he should possess that portion as his very own, and have a right to hold it without any one being justified in violating that right. (¶9)
The Stoics thought that mere possession did most of the work – the way individuals coming into a theater may claim they sit “by right” where they find a place.
But the point I want to emphasize is that, in the tradition, the gift of the whole earth to the human race did not preclude the natural right to own private property but just the opposite! The general gift was regarded as the very condition of any individual’s genuine claim to own something by right. Since this gift is prior to the State, so the right is prior to the State. As Pope Leo again puts it: “There is no need to bring in the State to explain it. Man precedes the State (homo, quam respublica, senior), and possesses, prior to the formation of any State, the right of providing for his continuing bodily existence.” (¶7)
This is a rich topic. Here, I will simply draw out a warning and point to a consolation.
The warning, if the tradition is correct, is this: those “environmentalists” who deny the special status of the human race, viewing us as mere parasites on the earth, or at best as an equal participant among other living species, implicitly take away the claim by any of us to own something “by right.” Moreover, as the right to private property is a necessary underpinning of a free society, there’s an inherent tendency in such views, then, both to diminish freedom, and to invest states and regulators with all “power” over property.
In short, misguided environmentalism implies socialism.
The consolation is this. Arguably, we need reformulations of the tradition that can take the moral high ground away from environmentalists of that kind (care for Creation is another matter entirely), through using concepts agreeable to modern sensibilities – say, arguments that hold we are distinctive in view of the distinctive community enjoyed by “the human family,” and that we share a God-given responsibility for our “common home.” And these teachings are two real contributions of Francis’ pontificate.
*Image: Noah’s Ark by Edward Hicks, 1846 [Philadelphia Museum of Art]
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