Props to Brad Littlejohn for taunting me to respond to his post Recovering the Catholic Doctrine of Private Property (Pt. 1). As I tell my Contracts students, you can't eat dirt so I take the position that contracts are more important than property. For some reason, my Property-teaching colleagues haven't been amused. Nonetheless, I have a few thoughts on the place of "property" in a Christian understanding of natural law. I begin with the social practice of contracting and then move to the law of contracts before returning to the notion of property.
Let's start with some helpful self-promotion. In my piece, Consideration in the Common Law of Contracts: A Biblical-Theological Critique (download here), I begin my argument with the proposition that several orthodox Christian doctrines undergird the social practice of contracting. I start with human dependence--entailed by our finite embodied form--and innate sociability (male and female and the family), warranted by the so-called dominion mandate, and oriented to eschatological rest. Apart from sin, we thus see the building blocks for what would have been a complex and interconnected world-wide web of exchanges. Each individual would have had particular gifts in the sense of skills the products of which (in goods or services) would have benefited a neighbor whether near or far. Markets, thus, are not properly a post-Fall phenomenon. Even in a sinless world, markets would have come into existence "naturally" with the growth in numbers of the human race and its dispersion across the globe.
Even if motivated by love, not avarice, exchanges would have occurred on a large scale. But that scale suggests a coordination problem. In traditional societies goods and services are allocated based on tradition and elders of the community. It strikes as unlikely that such a mechanism would have continued as the sole means of distribution as the Adamic family grew to many millions and extended from Eden to South America. Uncorrupted traditional forms of distribution would certainly have characterized an unfallen world but a market-component would have also have played a role. This power to effect change in relationships by contracting characterizes the first-order realm of primary rights (about which more below).
Yet, markets must have rules. Not rules of rectification for wrongs but coordination rules through the help of which even the unfeignedly good-hearted can better live. Thus something by which persons seeking to exercise dominion more effectively would come into existence. Such rules would have then, as largely they are now, been matters of prudence, not principle, like driving on the right-hand or left-hand side of the road.
Enter sin or, as the economists call it, opportunism. You can read my article Principled Pluralism and Contract Remedies (download here) for how I ground politically the secondary right of rectification for breach of contract. In short, I find the need for state-sponsored remedies for breach of contract in the Fall and the warrant for providing them in the Noachic covenant. Here I may suggest the piece I published as part of a symposium on Christianity and liberalism, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).
In my Looking for Bedrock piece, following in part Nicholas Wolterstorff (and my own readings, including the O'Donovans) I conclude that rights are every bit as fundamental as right-order. It's not an either-or, and it makes little sense to assert that's the case. (For links to my nearly-interminable series of posts on Wolterstorff's book, Justice: Rights and Wrongs, start here and work backwards.) Right-order-only folks need to come down from the clouds and stop romanticizing an imagined happy-clappy Medieval hierarchy. Either that, or read some of Martha Nussbaum's careful ethnographic studies of traditional Indian cultures.
With that we've come full circle. Human beings, even sinless ones, had primary rights. Those rights were and are grounded in our human nature both as images of God and as finite, embodied, social beings. Human cultures, even ones untainted by sin, would have needed coordination rules. Rights of the sort we humans have, and would have had, are primary. Such rights would have included contract and property. And such primary rights would have entailed rules. These rules would not have needed to address the wrong of opportunistic breach but some would have been in place regardless of the presence of sin.
"Property" as use alone would have been insufficient to build a sinless human culture. Some sort of rights to possess, exclude, and convey would have been appropriate. No doubt these rights would not have appeared as extensive or as absolute as we see today in commodified Western culture. Yet I believe that primary rights would have included some sort of property given the divine mandates to grow and develop human society and culture. Property is therefore not entirely adventitious.
Let's start with some helpful self-promotion. In my piece, Consideration in the Common Law of Contracts: A Biblical-Theological Critique (download here), I begin my argument with the proposition that several orthodox Christian doctrines undergird the social practice of contracting. I start with human dependence--entailed by our finite embodied form--and innate sociability (male and female and the family), warranted by the so-called dominion mandate, and oriented to eschatological rest. Apart from sin, we thus see the building blocks for what would have been a complex and interconnected world-wide web of exchanges. Each individual would have had particular gifts in the sense of skills the products of which (in goods or services) would have benefited a neighbor whether near or far. Markets, thus, are not properly a post-Fall phenomenon. Even in a sinless world, markets would have come into existence "naturally" with the growth in numbers of the human race and its dispersion across the globe.
Even if motivated by love, not avarice, exchanges would have occurred on a large scale. But that scale suggests a coordination problem. In traditional societies goods and services are allocated based on tradition and elders of the community. It strikes as unlikely that such a mechanism would have continued as the sole means of distribution as the Adamic family grew to many millions and extended from Eden to South America. Uncorrupted traditional forms of distribution would certainly have characterized an unfallen world but a market-component would have also have played a role. This power to effect change in relationships by contracting characterizes the first-order realm of primary rights (about which more below).
Yet, markets must have rules. Not rules of rectification for wrongs but coordination rules through the help of which even the unfeignedly good-hearted can better live. Thus something by which persons seeking to exercise dominion more effectively would come into existence. Such rules would have then, as largely they are now, been matters of prudence, not principle, like driving on the right-hand or left-hand side of the road.
Enter sin or, as the economists call it, opportunism. You can read my article Principled Pluralism and Contract Remedies (download here) for how I ground politically the secondary right of rectification for breach of contract. In short, I find the need for state-sponsored remedies for breach of contract in the Fall and the warrant for providing them in the Noachic covenant. Here I may suggest the piece I published as part of a symposium on Christianity and liberalism, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).
In my Looking for Bedrock piece, following in part Nicholas Wolterstorff (and my own readings, including the O'Donovans) I conclude that rights are every bit as fundamental as right-order. It's not an either-or, and it makes little sense to assert that's the case. (For links to my nearly-interminable series of posts on Wolterstorff's book, Justice: Rights and Wrongs, start here and work backwards.) Right-order-only folks need to come down from the clouds and stop romanticizing an imagined happy-clappy Medieval hierarchy. Either that, or read some of Martha Nussbaum's careful ethnographic studies of traditional Indian cultures.
With that we've come full circle. Human beings, even sinless ones, had primary rights. Those rights were and are grounded in our human nature both as images of God and as finite, embodied, social beings. Human cultures, even ones untainted by sin, would have needed coordination rules. Rights of the sort we humans have, and would have had, are primary. Such rights would have included contract and property. And such primary rights would have entailed rules. These rules would not have needed to address the wrong of opportunistic breach but some would have been in place regardless of the presence of sin.
"Property" as use alone would have been insufficient to build a sinless human culture. Some sort of rights to possess, exclude, and convey would have been appropriate. No doubt these rights would not have appeared as extensive or as absolute as we see today in commodified Western culture. Yet I believe that primary rights would have included some sort of property given the divine mandates to grow and develop human society and culture. Property is therefore not entirely adventitious.
No comments:
Post a Comment