This is the third piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. A general introduction to the symposium can be found here. Rachael Walsh is an assistant professor in the School of Law, Trinity College Dublin.
Introduction
Property rights – whether guaranteed through private law or constitutional guarantees, or both – provide an illuminating example of individual rights that are imbued with common good-oriented limitations. In the property rights context, the common good is implicated from the ground up. As Eric Freyfogle puts it, ‘[p]roperty rights are sanctioned and supported within communities because community members collectively decide or sense, in one way or another, that a private-property regime will benefit them.’ Property rights both contribute to, and are constrained by, the broader aim of securing the common good. Restrictions on the exercise of property rights are capable of both enhancing or impeding the realisation of that aim.
Accordingly, the justification and limits of property rights are inevitably intertwined with evolving debates within communities about how best to achieve the common good. A clear understanding of property’s dual relationship with the common good – as both a tool for securing the common good and a potential impediment to progressive change – is of crucial significance as communities attempt to tackle complex problems that may require restrictions to be imposed on the exercise of property rights. For example, ensuring access to safe and secure housing for all and responding to climate change may require responses that limit property rights. A lack of attention to property’s common good dimensions could impede the development and implementation of effective policy responses to these pressing social challenges.
While recent developments in common good constitutionalism have been characterised in some quarters as novel or controversial, open engagement with property’s moral values, and with the common good values that should delimit it as a social and legal institution and as an individual right, is not new. What Tony Honoré termed ownership’s ‘social aspect’[1] or Léon Duguit referred to as property’s ‘social function’[2], is widely accepted by property scholars. Furthermore, it is an identifiable influence in both judicial and legislative decision-making in respect of property rights. As Kevin Gray says, ‘there remain today few true property absolutists’.
Relatedly, there is within property theory increasing resistance to treating efficiency as property’s core or exclusive value, with the ‘progressive property’ school of thought in particular recognising a plurality of values implicated in law-making in respect of property rights. Some of this work has drawn explicitly on Aristotelian virtue ethics and Thomistic thinking about property and the common good. Within the ‘progressive property’ school of thought, social obligations, social relations, obligations of attentiveness, and human flourishing have variously been advanced as concepts and theories aimed at countering cultural narratives that treat property rights as protected absolutely or very robustly.
‘Progressive property’ theories have successfully refocused attention on property’s dependence on the common good and have helped to legitimise regulatory intervention that restricts property rights. Furthermore, they have cast property’s relational nature and its potential exclusionary effects into sharp relief. However, ‘progressive property’ theories have had less success in articulating clear criteria to delineate the scope and content of property’s ‘social aspect’ and clarify the crucial balance between right and obligation in respect of property. Critics have identified the weight placed on ex post judicial decision-making as a potential risk to the stability of property as a legal and social institution. In practice, where judges are asked to apply concepts like social justice and the common good to delimit private property rights without any additional guidance, uncertainty and incoherence can emerge and such concepts can remain underdeveloped in legal doctrine.
So where should property theory look for inspiration about how to take the next step of giving clearer, more predictable guidance about the content of property’s ‘social aspect’?
Fresh Direction from the Classic Legal Tradition
The classic legal tradition has perhaps a surprising amount to offer to scholars, judges, legislators, and administrators in attempting to appropriately calibrate property’s individual and social aspects. Aquinas’ thinking on property, as articulated in his Summa Theologiae, provides an especially useful place to start in sharpening approaches to property that recognise its embeddedness in broader debates about the common good. Aquinas highlights the need to distinguish between decisions about the property institutions and systems that are given legal effect within a community on the one hand, and decisions about the strength of the legal protection that it is appropriate to afford to individual property rights on the other hand.
The first core question that Aquinas addresses in relation to property is whether it is natural for man to possess external things. He determines that it is, reasoning, “God has supreme dominion over all things; and, according to His providence, He has ordained certain things for the support of man’s body. For this reason man has a natural dominion over things with regard to the power to make use of them.”[3] In this way, Aquinas determines that the law of nature prescribes a foundational right for human beings to use material goods for sustenance, which is rooted in the natural human inclination for self-preservation.
Aquinas’ justification for private possession of property is more qualified and contingent:
Two things pertain to man with regard to external things. One is the power to procure and dispose of them; and, in this regard, it is lawful for man to possess property. Indeed, this is necessary to human life, for three reasons. First, because everyone is more diligent in procuring something for himself than something which belongs to all or many; for each one, avoiding labour, would leave to someone else [the procuring of] that which was to belong to all in common, which is what happens where there is a multitude of servants. Second, because human affairs are conducted in a more orderly manner if each man is responsible for the care of something which is his own, whereas there would be confusion if everyone were responsible for everything in general. Third, because a more peaceful state of things is preserved for mankind if each is contented with his own. Hence we see that quarrels arise more frequently between those who hold property in common and where there is no division of the things possessed.
The other thing which pertains to man with regard to external things is their use. In this respect man ought to hold external things not as his own, but as common: that is, in such a way that he is ready to share them with others in the event of need.[4]
This analysis offers an instrumental case in favour of private property. Private possession is ‘a convention of reason’ that is derived from the law of nature’s requirement that human beings must have use of the earth’s material resources for their sustenance, and is delimited by that requirement.
In a move that is important for the development of property theory, Aquinas goes beyond simply recognising the principle of limited property rights and attempts to fill those limits with content. He distinguishes between resources that a person needs for his or her survival and for the survival of any dependants, resources that a person needs to meet genuine responsibilities, and other privately-held resources. The latter category involves possessions that as matter of justice must be made available where needed by others for material sustenance. This limitation is necessary to ensure that human laws allowing for private possession or ownership do not clash with the natural law requirement that material resources should be available to secure all individuals’ basic needs. While the distribution of resources is ordinarily a matter for the property owner, theft is permissible in cases of urgent need.[5] In addition, anyone can take property from another on behalf of a needy individual.[6]
As well as highlighting the instrumental and qualified nature of the justification for private ownership, Aquinas draws an important distinction between the institution of private ownership and individual rights of ownership distributed through the operation of that institution. For Aquinas, the decision to allow private possession of external things within a community does not determine the strength of any rights that may vest in individuals through the operation of that resource-management system. Private possession is generally regarded as likely to contribute to the common good, but any ensuing rights are ultimately held subject to the evolving demands of common good.
This is an important insight that needs to be borne in mind as the legal relationship between property rights and the common good is mediated on an ongoing basis in a range of contentious and high-stakes policy contexts. It may be deemed prudent within a community to establish and operate a private ownership system to secure the various instrumental benefits identified by Aquinas, amongst others. Furthermore, given the basic human need for material sustenance, it may be deemed necessary to ensure that no groups can be categorically excluded from the possibility of accessing that system (for example, through rules limiting the categories of individuals who are legally permitted to own property). However, those system-level decisions do not determine the appropriate degree of protection of individual property rights. Strength of protection must be worked out bearing in mind the wider effects on the realisation of the common good, with such judgments inevitably context-dependent.
Conclusion
There is an observable pattern of disconnection between scholarship and judicial reasoning on the one hand, which recognise the qualified nature of property rights, and policy-making on the other hand, where myths about the acontextual, strong nature of property rights often discourage direct engagement with the relationship between property rights and the common good. For example, Freyfogle notes a ‘disturbing reluctance’ on the part of the conservation movement to frame measures in terms of the common good, with that movement preferring instead to employ equally vague (but perhaps apparently more scientific and objective) terms such as sustainable development and sustainability.
This pattern may be explained in part by a lack of guidance and confidence about articulating the content of property’s ‘social aspect’. Property theory has embraced property’s ‘social aspect’ in principle, but has yet to amplify the meaning of that concept. Unsurprisingly when considered against that backdrop, cultural myths of property rights as strong rights that create ‘anti-regulatory ammunition’ persist.
The classic legal tradition has already been a source of inspiration for the development of property theory that is alive to property’s embeddedness in wider debates about the common good. It has much to offer as property theory attempts to move beyond recognising the principle of property’s ‘social aspect’ towards developing sharper criteria for determining the scope of property’s ‘social aspect’ in particular contexts. That next step will be of crucial practical significance, helping to smooth the way for tackling difficult problems like housing and climate change. The fresh direction and guidance that the classic legal tradition offers on the relationship between property and the common good will be of vital importance in taking that step.
Perhaps most significantly, the classic legal tradition prompts us to assess property dilemmas in light of the core function of material resources, namely sustaining the life of all humans. That perspective provides an illuminating lens through which to unpack the complex relationship between property and the common good that underpins and shapes responses to many of our most pressing problems, thereby potentially helping to unlock solutions to those problems.
Rachael Walsh
[1] A. M. Honoré, ‘Ownership’, in A. G. Guest (ed.), Oxford Essays in Jurisprudence (First Series) (Oxford: Oxford University Press, 1961), p. 107, pp. 144–45.
[2] Léon Duguit, Les Transformations Générales du Droit Privé Depuis the Code Napoléon 21 (2d ed. 1920).
[3] IIaIIae 66: 1 Ad 1. All references to Summa Theologiae are to the translation by RW Dyson, Aquinas: Political Writings (Cambridge University Press, 2002).
[4] IIaIIae 66: 2, responsio.
[5] IIaIIae 66: 7 responsio.
[6] IIaIIae 66: 7 ad 3.
