12 August 2014

Rights and Powers at Creation

Yesterday I took the time to sketch my argument for why some form of private property would have existed even without the Fall. You can read it here. In brief, created human nature plus the dominion mandate plus numerical and geographic expansion would have led to some form of private ordering which, in turn, would have entailed some form of private property. My use of the word "some" indicates that we can never know the precisely what form the rights of possession, exclusion, and disposition would have taken, only that there would have been something more than mere Franciscan "use".

Pushback in the form of a thoughtful question didn't take long. My original inquisitor, Brad Littlejohn, commented that "I'm mystified by your use of the term 'primary right' in the way you use it. Your description of the derivation of private property looks to me very much like an elaborated version of the Thomist logic, but then you go and call what looks very much to me like a secondary right a 'primary right.'"

Given the press of other matters (including finishing a paper on the rights of municipal residents in municipal bankruptcy), my reply will be brief. It may, however, be of sufficient interest to others to warrant posting on my blog.

In short, rather than writing in this connection of rights at creation, I should have begun with powers before proceeding to rights. I began with the social practice of contracting, worked forward to (post-Fall) legal remedies for breach of contract, and then back to a pre-Fall notion of private property. Entering into promissory agreements—the social practice of contracting—is an example of exercising a power.

A power is the ability to effect a change; a right is something we have by virtue of our nature or, in the pre-Fall world, something we acquire after we've exercised a power. Thus, if we exercise the power to contract we (or at least one party to the agreement) acquires the right to what was promised; what the law calls the expectation interest. Such a right is, in my idiosyncratic vocabulary, a primary right. Once vested with such a primary right, there arises a secondary right of rectification if the expected state of affairs does not come to pass. In a sinless world, such defeated expectations may have been exceedingly rare if not nonexistent but they are common enough in the world as we know it.

The power to engage in the social practice of contracting entails, I argued, some form of private property; otherwise, how could I promise to deliver my almost ripe cantaloupes in exchange for your yet-unharvested pumpkins? In other words, I must have rights to possess, exclude others from possessing, and then delivering what I am growing in order to agree to deliver it to you at some future date. This concatenation of rights (always cabined by the goal of eschatological rest) are also, in my view anyway, primary.

I have no doubt I may be using my terms inconsistently with The Tradition and for that I beg forgiveness. Yet at the lease I hope I have made matters clear(er).


  1. It seems to me that your thinking is constantly invaded by the post-Fall mindset, which is not surprising, since that is our only experience. Perhaps we simply can't imagine life without the sinful impulse to "mine and thine"? I would make this suggestion -- I think our thinking would be clearer if we started using the more accurate phrase "dominion blessing" instead of the traditional but misleading "dominion mandate." Fwiw, my thoughts on private property (summarized in the linked article) is that it is a temporal (not a natural) good -- like all human commands backed by human force. It's a necessary evil like war. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2002225

  2. Agree that "mandate" is not the best term although "blessing" doesn't seem exactly right either. Cf. the multiple "let the's" in Ge 1.3, 6, 9, 11, 14, 15, 20, and 24 with the explicit "blessed" in Ge 1.22 and the implicit blessing of the "it was [very] good's". Perhaps the multiple "let us's" are best understood as purposive, i.e., in v. 26 man was made to have dominion. See also Ps. 8.6.

  3. If you take your Augustinian principles to their logical conclusion Lou, you must conclude that property is solely a civil right that the government can take away as it sees fit to serve the common good. That was certainly not the view of the common law or our Founders.

    The natural right to property can be seen in Genesis 1 and 2. God gave the earth to man, and a gift is a transfer of title, meaning property. The dominion mandate or blessing, includes authority over the earth in a hierarchical structure. Property at its core involves hierarchical priority of rights. Admittedly, the nature of property changed after the fall, including the need to use force to protect rights. But that doesn't eliminate or change the natural right origins of property.

    Scott, to go back to your earlier post, if there were no (tangible or intangible) property, there'd be nothing to contract about, so property is clearly foundational and primary to contracts.

  4. Aquinas and Wolterstorff both say something like 'a person in want has a right to another's surplus.' Assuming a lack of scarcity in a prelapsarian world, perhaps no one would have a right to exclude another from their "property," since all would be surplus? Of course, no one would think to invade another's property either, so no one would even conceive of trespass or breaches of contract or remedies, etc. Wouldn't a sinless state make private law meaningless?

  5. Kenny: Even a sinless--but pre-eschatological--state would require coordination rules.