Ownership and Natural Law

Theme: Role of the concept of right to or ownership over real property in late medieval natural law theory; comparison with early modern natural rights theory and contemporary natural rights theory.

I. Prologue: relevance of theme.
 A. Political and legal shifts since 1900.
  1. Decline of property rights.
   a. Communist revolutions.
   b. Fascism.
   c. Changes in America.
    i. Sixteenth Amendment.
    ii. New Deal.
  2. Rise of the “totalitarian” state.
   a. Russia.
   b. Germany.
   c. America.
    i. New Deal
    ii. Warren Court.
    iii. Federalist revival.
  2. Emphasis on personal rights or liberties as preferred freedoms.
 B. Larger socio-economic trends.
  1. Industrialization.
  2. Decline of agriculture.
  3. Rise of intellectual “property.”
  4. Growth of financial markets.
  5. Social security: end of whole-life dependence on family.
  6. Mass consumer culture: end of individual/family dependence on local socio-economic community.
  7. Corporate culture: quasi-democratic separation of ownership and control.
  8. Suburbanization: conversion of real estate from productive to consumptive use.
 C. Suggested uses of natural law/natural rights arguments.
  1. Limited government?
  2. Community of goods/women?
  3. Free markets?
  4. Agrarianism?

II. Background to theme.
 A. Before Rome.
  1. Old Testament.
   a. Abraham in Canaan: buys land, respects locals.
   b. Israelites in Canaan: divine command for conquest; inalienable title per stirpes.
  2. Greece?
 B. Roman law.
  1. Ius gentium categorically.
  2. Cicero’s claims in De Legibus about the nature of law.
  3. Property rights under ius gentium and ius civile.
 C. Augustine.
  1. Skeptical of natural justice in practice. De Civ. Dei, V.
  2. Teaches passive submission to ius civile. De Civ. Dei, XIX.
  3. Admiration for Roman system?
 D. Aquinas.
  1. Natural law as one of four species of law.
  2. Ownership or property right grounded in natural law.
  3. Ownership or property right conditioned by positive law.
 E. Finnis.
  1. Secular natural law.
  2. Role of property right in his system.
  3. Limits of property right.

III. Explication of theme.
 A. Ecclesiastical property debates of late middle ages.
  1. Radical Franciscan position.
   a. Christ and apostles didn’t hold ownership of things.
   b. Christians don’t need ownership of things to fulfill mission in world (anachronistic parallel: “fully realize selves”?).
   c. Franciscans can and should renounce ownership of things in order to achieve true spiritual liberty.
  2. Radical Augustinian position represented by Giles of Rome in De Ecclesiastica Potestate.
   a. Neoplatonic hierarchical cosmology/sociology inherited from Pseudo-Dionysius: subjection of higher to lower.
   b. The spiritual power (Pope in Church) holds fullness of power by virtue of Christ’s grant of the “keys” to Peter.
   c. Kings and ordinary people hold power/ownership derivatively of spiritual power.
   d. The spiritual power may intervene in temporal matters with impunity.
   e. The rule of kings and princes, and the ownership of property, is at the sufferance and acquiescence of the spiritual power.
   f. General comparison with Augustine.
  3. Moderate Dominican position represented by John of Paris in De Potestate Regia et Papali.
   a. No grant of temporal authority in gift of keys to Peter.
   b. Royal power established independently of intervening spiritual power, either by direct divine institution or by consent of people, to promote the common good.
   c. Royal and papal power alike subject to deposition by people/whole Church if such power is incompatible with the common good.
   d. General comparison with Aquinas.
   e. Comparison with Marsilius of Padua.

Note: Analysis of the right of ownership in Ockham and Vitoria is to be the heart of this paper. I have yet to complete my “deep” read of both thinkers, and so these §§ of the paper are not outlined. The thought of Ockham in particular is not only complex, but nested in a labyrinth of arguments and counter-arguments.

 B. William of Ockham’s contribution.
 C. Further development by Francisco de Vitoria.

On one level, Ockham may be read as limiting both royal and papal power Figuring prominently in this connection are concepts of ius and dominium, and objective and subjective rights. Some credit Ockham with formulating dominium or ownership as a subjective right or faculty, as a potestas. For others, he only amplifies an antecedent Franciscan strand. The upshot seems to be that Ockham describes a ius naturale, power, or faculty, manifested in ownership, which resides in free men and which functions to limit the dominium of kings and other men.

Vitoria advances similar arguments altogether outside of the ecclesiastical property problem and further develops the idea of dominium as the subjective right to ownership which becomes the basis for his positions in De Indis against the confiscation of American Indian territory by the Spanish crown. Similar threads are developed in his commentaries on Aquinas on the issues of murder, theft, and restitution.
It is my intent to compare both Ockham and Vitoria, on ownership of property, to at least Grotius and Rawls, and probably also Locke in the fourth part of the paper.

Sources: The more important of Ockham’s political works are translated in two volumes of selections from Cambridge. I also have his five-volume Opera Politica set (in Latin). De Indis is Vitoria’s most famous work; it is available with other selections in several editions. I shall also rely upon a body of secondary studies treating Aquinas, Ockham, Vitoria, and the later Salamancans. Most of important of these are: Annabel S. Brett, Liberty, Right, and Nature: Individual rights in later scholastic thought (Cambridge, 1997); Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law: 1150-1625 (Atlanta: Scholars Press, 1997).

 D. Refinements by Vitoria’s successors at Salamanca.
  1. De Soto.
  2. Vasquez.
  3. Suarez.
 E. Comparison with Bodin.
  1. Vitoria limits sovereignty by people’s right to ownership of land in De Indis.
  2. Bodin limits sovereignty of monarch by property right of father.

IV. Response to theme.
 A. Early modern natural rights theory.
  1. Grotius.
  2. Locke.
 B. Contemporary natural rights theory.
  1. Rawls.

V. Conclusion to theme.
 Critique of Herbert Spencer? Lochner? New Deal Jurisprudence?

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