Thomas Patrick Burke
D.Phil.,D.Th.
President, Wynnewood Institute, Professor Emeritus of Religion, Temple University
Classical Liberalism
A Lecture Series with Prof. Thomas Patrick Burke
In the last lecture I argued that justice is a quality of actions in virtue of which they are compatible with the freedom of will of other people. An essential quality of just actions is traditionally considered to be that they respect other people’s property. In this lecture I wish to investigate the connection between justice and property. How does property relate to the freedom of the will? How can private property be justified?
Ownership
Ownership consists in having authority over a thing. It is primarily not a relationship between a person and a thing, but one between persons, that is, between wills, in regard to a thing. It is the right to exclude other persons from the use of the thing.
Authority is different from simple power. If I have an apple in my hand, I have physical power over it and can eat it or throw it away. But to have authority over it is to have the moral power or right to do that, in contrast to others who do not have that right. I may have that moral power or right even though someone else has the apple in his hand.
Only a being that has freedom of will can own anything. For ownership, being a moral power, belongs to the moral order, which exists only where there is freedom of will. Animals cannot own anything; nor can they be guilty of theft. It is natural and morally unobjectionable that animals should take food away from one another by force. To human eyes this may look like robbery, but “robbery” implies a moral judgement, which is out of place in describing the actions of animals. Animals can stake out territory and fight to control it but this does not mean they have a moral right to it.
But as soon as freedom of the will is present, that is, as soon as there is a human being, and therefore the moral order, there is a right to property. This is why Hegel calls the right to own property a “right of personality.” It is a right that comes immediately with the possession of personhood, with the fact that one is a person, a member of the human species (or a rational being), because it is the embodiment of what is most distinctive of the person, the freedom of their will. All persons and only persons can own property. A day-old baby can own a vast fortune.
If I steal someone else’s property, I not only do something he does not wish me to do, not only discount the object or content of his will, but I negate, override and trample on the freedom of his will. I use physical force to make something which is the embodiment of his will, and from which he has rightfully excluded me, into the embodiment of my will, without his consent. I place my freedom above his, even though his freedom has in itself as much value as mine. I thereby insult his dignity as a free and self-governing person: I deprive him of his natural autonomy, his sovereignty over himself, and debase and degrade him, just as I debase and degrade him if I put handcuffs on him without cause.
Initial Acquisition
If a thing has never been owned previously by anybody else, I can come to own it by taking three simple steps: First, by having the will to make it my own. Second, by taking physical possession of it. And third, by declaring or otherwise making evident that I will to exclude others from owning it.
In order to own an object, we must first have the will to own it. Ownership is an act of will, and my property is therefore the embodiment of my will. This is the central and decisive condition of ownership. An object that falls under my control accidentally but that I have no will to own does not become my property. (These statements apply to adults and must be understood in a suitably modified form in regard to children. A child cannot take initial possession of an object because he does not have an effective will. But he can possess property because it has been given to him.)
Physical possession or occupancy is an important part of original acquisition because the right of property is an exclusive right to use objects, and one can use an object only by physically controlling or occupying it. If an object has never before had an owner, we must take physical possession of it in order to use it. Furthermore, just because my property is the embodiment of my will, my interior and invisible will alone that some object should be mine is not enough to make it so. I must occupy it or take physical possession of it so that its status as my property will be recognizable to others.
Again, it is not enough to control or occupy the object, and to have the interior and secret will to own it, but I must also manifest publicly my will to own it in some way to others. There are many ways of doing this, some formal and some informal. It can be done simply by placing a mark on the object.
Locke famously argued that we come to own an item through our labor, by “mixing” our labor with the item. We own ourselves, and so we own our labor, he maintained. This is true, and can be seen most clearly in the case of works of art, for the artist imposes a new form on his material, which links him to it in a unique way, and this link perseveres even if he becomes separated from it spatially. But in order to acquire property it is not necessary to expend one’s labor on it beyond the three steps I just mentioned.
How far does the right of first ownership extend? How much of an object can I acquire as its owner in this way? Locke answers in terms of use. “As much as any one can make use of to any advantage of life before it spoils.” The reference to spoilage suggests he has in mind mainly food. But this is too restrictive. A better answer is in terms of control: as much as I have the physical ability to exclude others from. This includes Locke’s condition, since in order to use objects I must control them; but it also extends further, for example to the possession of land. Control is a more appropriate criterion because it applies to all kinds of property, not only food, and it goes with occupancy and physical possession. It also has more recognition in international law, for example in fixing the extent of territorial waters.
One takes possession of a natural object and makes it one’s property for a purpose: to serve a need. Property is for use. My use of it is the external manifestation of my need. Some people conclude, however, from this close relationship between ownership and use that a property that is not used loses its ownership. But this is a mistake. The decisive thing in my ownership of an object is my will to own it. This can intend future use, or future use conditional on need. Ownership does not require actual need or actual use.
On the other hand, if a person has complete use of an object, the right to use it in every way, including destruction of it, then he owns it. There is no difference between total right of use, and ownership.
But if the will to own and to use an object entirely evaporates, ownership
lapses; the object becomes ownerless. This happens to public monuments that were significant in the past history of a society but are now abandoned and no longer honored or cared for. Many monuments and works of art which were created in ancient societies have since lost meaning for their successor-societies but have been saved by Western nations that appreciated their significance. Now, tutored by the West in the historic values of these monuments, the successors of these ancient societies wish to be recognized as their owners, and demand their restitution. But it is too late for that: by losing interest in these objects and monuments, in some cases for athousand or two thousand years, they lost their rights of ownership over them to others willing to honor them and care for them.
Property is the embodiment of a will. To own an object is, as Hegel expresses it, to “put my will into” it. I can do this to any “thing.” There is no thing that cannot be owned. The concept of a “thing” stands in contrast to that of person. Persons cannot be owned, since they are ends in themselves. They are free subjects, and to own them is to abolish their freedom, to reduce them from person to thing, so that in effect they are depersonalized. They cannot be owned as persons, but only owned as something else – as chattels. Properly speaking we do not even own ourselves, for whatever we own we can destroy. But we have an obligation to respect ourselves, as we respect other persons, since we possess freedom of will as they do, and the dignity that comes from that. There are actions we may not do toward ourselves without degrading ourselves. A thing, by contrast, is what is different from a person. In Hegel’s words again, a thing is something “not free, not personal, without rights.” Things do not belong to themselves; unlike persons, they are not ends in themselves; they are brought into the realm of purpose and meaning by the human will. Human beings, and all rational beings, have an absolute right of appropriation over all things. A thing is always something external to a person. Something that is an integral part of a person, such as a limb or organ, is never merely a thing.
Since the central fact in my ownership of anything is my will to own it, I have the power to give up this will and either discard the object or give it or sell it to another. Not everything, however, which can be possessed can be discarded or sold. Persons cannot be either owned or sold, because the defining quality of the person is his dignity stemming from his freedom of will. My property is always something external to me. The question is sometimes asked as if it were a puzzle, whether a person can sell himself into slavery. But one cannot sell one’s right to life: as the Declaration of Independence states, there are rights that are inalienable.
Can I sell my kidney? I can give it as a gift to a member of my family who needs one, and even to a person outside the family as an exceptional act of charity. But to sell a vital organ as if it were an ordinary external commercial object is degrading. I do not have that kind of ownership rights over my kidney, any more than over myself. My kidney is not my property, any more than I can be property. It is an integral part of myself. In judging whether an action is degrading, however, we should not look only at the external action: the motive of the action plays an important role. An action done for the sole purpose of aiding another person must be judged differently from the same action done in order to make money, even where the purpose of the money is to save my own life. Should actions that are degrading be prohibited by law? That would be going too far: the coercive penalties of the law can only be justified as remedies for coercive wrong.
Property is sacred.
What is sacred is set apart and forbidden (Durkheim). It is to be treated with respect and reverence; it is taboo, inviolable. This holds for every person, and it holds also of the rights of persons over what belongs to them, because their property is the embodiment of their free will. We have no right to interfere with a person’s freedom of will unless it causes or threatens harm to others; for the same reason we have no right to interfere with another’s property. As Plato puts it, “You shall not, if you can help, touch that which is mine, or remove the least thing which belongs to me without my consent; and may I be of sound mind, and do to others as I would that they should do to me.”
The sacredness of property is not merely an ideology of the powerful, much less the inertia of a thoughtless convention. What is at stake in property is the freedom of the human will and respect for that freedom. Property is sacred because the freedom of the will of each individual human being is sacred. A person who denies that the human will is free is no doubt unlikely to see the sacredness of property, but he is also unlikely to see the sacredness of human existence. For there can be nothing sacred about a machine or purely mechanical causation. If a person is to have respect for human dignity, the first requisite is to respect the freedom of each and every human will. This includes having respect for one’s own dignity and therefore one’s own freedom of will. It is easy enough when we do something we ought not to do to excuse ourselves by saying we were compelled to do it. Perhaps in some sense we may be, yet not in a sense that relieves us of our responsibility.
The moral argument for property is not an argument from need, as if the fact that we need property laid a foundation for a right to it, although this argument is often made. Need cannot create a right. For a genuine right is a claim that can be legitimately enforced through coercion, and the sole fact that a person needs something cannot be the foundation for using coercion to fill that need, since only unjust coercion can justify the use of coercion to remedy it. The right to property comes from a genuine right, the natural right to freedom, the freedom of our will. Legitimate liberty is sacred, and Hegel is right to say that property is the first embodiment of legitimate liberty. To attack any person’s property is to attack the person, because it is to attack the freedom of his will to make the arrangements he considers necessary or desirable for his existence. Your property causes me no harm, nor mine you. On the contrary, for anyone who understands what it means to exchange something freely with someone, which is of course the most basic concept of economics and the foundation on which our economic life depends, the exclusive possession of property by individuals is an indispensable condition for material
progress.
If we do not have the freedom to acquire property, it is hard to see what freedom we can have. This is true not merely of the amount of property we need to live, but of any amount of it. Although the moral right to own property is not grounded on its economic consequences but on ethical values, the economic effects of a regime of respect for property make a strong consequentialist or prudential argument for it. An example of this is the matter of incentives, which in economics is a question of decisive importance. If anyone can take freely what you have labored on, you have no incentive to labor on anything. The first prerequisite for any society that wishes to make material progress is to have firm laws guaranteeing strict property rights.
This is not to say, however, that every conception of property is equally valid. In the theory of the feudal system, all land belonged to the king, who was considered to earn this right in battle and who could dispose of it as he wished by bestowing it on his followers. But this is an exaggeration of the rights of kings. The sole fact that one army defeats an enemy army, even in a just war, though it may transfer the rights of ownership over governmental property to the victor, does not negate and destroy or bestow on the victor the rights of the existing private owners of property, even though they are enemies. Locke recognizes this explicitly. The true role of the king is to acknowledge and defend the existing just ownership rights of individuals. Yet in England it is still the rule that all title to land must ultimately be traceable to royal grant.
Redistribution
The coercive redistribution of property by government overrides and tramples on the freedom of the owner’s will and is inherently unjust. The duty of governments is the opposite of this, to protect the ownership rights of individuals. The attempt is often made to justify redistributive policies by pointing to the need of the poor, but as we saw, although voluntary help for the poor is praiseworthy, need cannot create a right.
There is a separate question about taxation, which we will discuss in the lecture on that subject.