The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Volume Ii
• Preface to Part Iv (when First Issued Separately)
• Part IV.: The Ethics of Social Life: Justice
• Chapter 1.: Animal Ethics
• Chapter 2.: Subhuman Justice
• Chapter 3.: Human Justice
• Chapter 4.: The Sentiment of Justice
• Chapter 5.: The Idea of Justice
• Chapter 6.: The Formula of Justice
• Chapter 7.: The Authority of This Formula
• Chapter 8.: Its Corollaries
• Chapter 9.: The Right to Physical Integrity
• Chapter 10.: The Rights to Free Motion and Locomotion
• Chapter 11.: The Rights to the Uses of Natural Media
• Chapter 12.: The Right of Property
• Chapter 13.: The Right of Incorporeal Property
• Chapter 14.: The Rights of Gift and Bequest
• Chapter 15.: The Rights of Free Exchange and Free Contract
• Chapter 16.: The Right to Free Industry
• Chapter 17.: The Rights of Free Belief and Worship
• Chapter 18.: The Rights of Free Speech and Publication
• Chapter 19.: A Retrospect With an Addition
• Chapter 20.: The Rights of Women
• Chapter 21.: The Rights of Children
• Chapter 22.: Political Rights–so-called
• Chapter 23.: The Nature of the State
• Chapter 24.: The Constitution of the State
• Chapter 25.: The Duties of the State
• Chapter 26.: The Limits of State Duties
• Chapter 27.: The Limits of State Duties–continued
• Chapter 28.: The Limits of State Duties–continued
• Chapter 29.: The Limits of State Duties–concluded
• Part V.: The Ethics of Social Life: Negative Beneficence
• Chapter 1.: Kinds of Altruism
• Chapter 2.: Restraints On Free Competition
• Chapter 3.: Restraints On Free Contract
• Chapter 4.: Restraints On Undeserved Payments
• Chapter 5.: Restraints On Displays of Ability
• Chapter 6.: Restraints On Blame
• Chapter 7.: Restraints On Praise
• Chapter 8.: The Ultimate Sanctions
• Part VI.: The Ethics of Social Life: Positive Beneficence
• Chapter 1.: Marital Beneficence
• Chapter 2.: Parental Beneficence
• Chapter 3.: Filial Beneficence
• Chapter 4.: Aiding the Sick and the Injured
• Chapter 5.: Succor to the Ill-used and the Endangered
• Chapter 6.: Pecuniary Aid to Relatives and Friends
• Chapter 7.: Relief of the Poor
• Chapter 8.: Social Beneficence
• Chapter 9.: Political Beneficence
• Chapter 10.: Beneficence At Large
• Appendices
• Appendix A.: the Kantian Idea of Rights
• Appendix B.: the Land Question
• Appendix C.: The Moral Motive
• Appendix D.: Conscience In Animals
• Appendix E.: Replies to Criticisms
• References

CHAPTER 12.

The Right of Property

299. Since all material objects capable of being owned, are in one way or other obtained from the earth, it results that the right of property is originally dependent on the right to the use of the earth. While there were yet no artificial products, and natural products were therefore the only things which could be appropriated, this was an obviously necessary connection. And though, in our developed form of society, there are multitudinous possessions, ranging from houses, furniture, clothes, works of art, to banknotes, railway shares, mortgages, government bonds, &c., the origins of which have no manifest relation to use of the earth; yet it needs but to remember that they either are, or represent, products of labor, that labor is made possible by food, and that food is obtained from the soil, to see that the connection, though remote and entangled, still continues. Whence it follows that a complete ethical justification for the right of property, is involved in the same difficulties as the ethical justification for the right to the use of the earth.

The justification attempted by Locke is unsatisfactory. Saying that “though the earth and all inferior creatures be common to all men, yet every man has a property in his own person,” and inferring that “the labor of his body and the work of his hands,” are therefore his, he continues: “Whatever then he removes out of the state that nature hath provided and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property.” But one might reply that as, according to the premises, “the earth and all inferior creatures” are “common to all men,” the consent of all men must be obtained before any article can be equitably “removed from the common state nature hath placed it in.” The question at issue is, whether by labor expended in removing it, a man has made his right to the thing greater than the preexisting rights of all other men put to- gether. The difficulty thus arising may be avoided however. There are three ways in which, under savage, semicivilized, and civilized conditions, men's several rights of property may be established with due regard to the equal rights of all other men.

Among the occupiers of a tract who gather or catch the wild products around, it may be tacitly, if not overtly, agreed that having equal opportunities of utilizing such products, appropriation achieved by any one shall be passively assented to by the others. This is the general understanding acted upon by the members of hunting tribes. It is instructive to observe, however, that among some of them there is practically. if not theoretically, asserted the qualification indicated above; for usage countenances a partial claim by other tribesmen to game which one of the tribe has killed: apparently implying the belief that this prey was in part theirs before it was killed. Schoolcraft tells us concerning the Comanches that

They recognize no distinct rights of meum and tuum, except to personal property; holding the territory they occupy, and the game that depastures upon it, as common to all the tribe: the latter is appropriated only by capture. . . . He who kills the game retains the skin, and the meat is divided according to the necessity of the party always without contention, as each individual shares his food with every member of the tribe.

Kindred usages and ideas are found among the Chippewayans. Schoolcraft writes:

In the former instance [when game is taken in inclosures by a hunting party], the game is divided among those who have been engaged in pursuit of it. In the latter [when taken in private traps] it is considered as private property: nevertheless, any unsuccessful hunter passing by may take a deer so caught, leaving the head, skin, and saddle for the owner.

The quasi-equitable nature of these several arrangements, vaguely. if not definitely. regarded as right, will be fully appreciated by one who is joint tenant of a fishing, or is privileged along with other guests to utilize one, and who is conscious of annoyance if a cotenant, or companion guest, makes undue use of it: a feeling which would be still stronger were an unfair share of food appropriated as well as an unfair share of sport.

Passing from the hunting stage to the semisettled stage, we meet with usages having the same general implications. The occupied area, instead of being equally available by all for gathering and catching the food it spontaneously yields, becomes equally available by all for growing food; and the products of labor in the last case, like the achievements of labor in the first, are owned by those who expend the labor. It is perceived that the assent of the clan to ownership of food grown on an appropriated portion by any one, is implied in the assumptions of kindred ownerships, similarly established, by all others. As shown by the Russian tenures described in the last chapter, the indefinite understanding thus arising, passes eventually into a definite understanding: there is a partition of the land into equal portions; a farming of each portion by its appointed owner; and a recognition of the produce as his property. A kindred understanding existed among the Irish in the time of Henry II and later. “The land belonging to the tribe was shared among its members, but redivided among them at certain intervals of years”: the implication being that, by general agreement, whatever the individual obtained from the land by his labor under these conditions was exclusively his. In this case then, as in the first, the right of property arises in conformity with the law of equal freedom.

Though we cannot say that ownership of property, thus arising, results from actual contract between each member of the community and the community as a whole, yet there is something like a potential contract; and such potential contract might grow into an actual contract if one part of the community devoted itself to other occupations, while the rest continued to farm: a share of the produce being in such case payable by agreement to those who had ceased to be farmers, for the use of their shares of the land. We have no evidence that such a relation between occupiers and the community, with consequent authorized rights of property in the produce which remained after payment of a portion equivalent to rent, has ever arisen; for, as we have seen, the original ownership by the community has habitually been usurped by internal or external aggressors, and the rent, taking the shape, if not of produce, then of labor or military service, has been habitually paid to the usurper, a state of things under which equitable rights of property, in common with equitable rights of all kinds, are submerged. But out of such usurpations there has grown up, as we have seen, ownership by the state and tenancy under it; from which there may again arise a theoretically equitable right of property. In China, where “the land is all held directly from the Crown” “on payment of an annual tax,” with “composition for personal service to the government,” the legitimate proprietorship of such produce as remains after payment of rent to the community, can be asserted only on the assumption that the emperor stands for the community. In India, where the government is supreme landowner, and where, until the zemindar system was established, it was the direct receiver of rents, the derivation of a right of property by contract between the individual and the community can be still less asserted without a strained interpretation. Nor at home, where the theory that each landowner is a tenant of the crown is little more than a theory, is there any better fulfillment of the ethical requirement. Only here and there, where state ownership is not potential but actual, and ordinary rents are paid by occupiers to the crown (which has now in such cases come to be identified with the community), has there been consequently established that kind of use of the earth which gives a theoretically valid basis to the right of private property.

But admitting that the establishment of an ethically complete right of property is beset with difficulties like those which beset the establishment of an ethically complete right to the use of the earth, we are nevertheless shown by a survey of the facts which existing primitive societies present, and the facts traceable in the early histories of civilized societies, that the right of property is originally deducible from the law of equal freedom; and that it ceases to be so deducible only when the other corollaries from the law of equal freedom have been disregarded.

300. This deduction, early recognized in custom and afterwards formulated by legislators, has come to be elaborated and enforced more and more fully as society has developed.

That the right of property was originally conceived as a claim established by labor which was carried on without aggressing on others, is seen in the fact that among the rudest peoples, who have developed the conception to the smallest extent, there is property in weapons, implements, dress and decorations–things in which the value given by labor bears a specially large ratio to the value of the raw material. When with such articles we join huts, which, however, being commonly made by the help of fellow men who receive reciprocal aid, are thus less distinctly products of an individual's labor, we have named about all the things in which, at first, the worth given by effort is great in comparison with the inherent worth; for the inherent worth of the wild food gathered or caught is more obvious than the worth of the effort spent in obtaining it. And this is doubtless the reason why. in the rudest societies, the right of property is more definite in respect of personal belongings than in respect of other things.

That recognition of the right of property is originally recognition of the relation between effort and benefit, is, at a later stage, shown in the regime of the patriarchal group and the house community; for though, as Sir Henry Maine points out, the head of the group was at first nominally owner of all its possessions, yet, in fact, he held its possessions in trust, and each of its members, while he did his share in the carrying on of the joint labors, had his share in the proceeds. Though this arrangement–quasi-socialistic within the group, but competitive outside the group–does not give definite expression to the right of individual property, it tacitly asserts that labor must bring to the laborer something like its equivalent in produce. And the tacit assertion passes into an overt assertion in those cases where members of the group acquire property in virtue of labor expended by them apart from the labors of the rest.

To trace the development of the right of property as established by rulers and administered by their agents, setting out with the interdict on theft in the Hebrew commandments, and continuing down to modern days, in which proprietorships of all kinds have been legally formulated in multitudinous detail and with great precision, would be no less out of place than it would be superfluous. It suffices for present purposes to note that this implication of the principle of justice, perceived from the first perhaps more clearly than any other, has gained in the course of social progress increased definiteness of recognition as well as increased extension and increased peremptoriness; so that now, breach of the right of property by unauthorized appropriation of a turnip or a few sticks, has become a punishable offense; and there is ownership of a son, of a pattern, of a trademark.

301. Supposing themselves to be justified, and indeed enjoined by moral principle, many in our days are seeking to override this right. They think it wrong that each man should receive benefits proportionate to his efforts–deny that he may properly keep possession of all which his labor has produced, leaving the less capable in possession of all which their labors have produced. Expressed in its briefest form, their doctrine is–Let unlike kinds and amounts of work bring like shares of produce–let there be “equal division of unequal earnings.”

That communism implies violation of justice as defined in foregoing chapters, is manifest. When we assert the liberty of each bounded only by the like liberties of all, we assert that each is free to keep for himself all those gratifications and sources of gratification which he procures without trespassing on the spheres of action of his neighbors. If, therefore, one obtains by his greater strength, greater ingenuity. or greater application, more gratifications or sources of gratification, than others, and does this without in any way trenching on the spheres of action of others, the law of equal freedom assigns him exclusive possession of all such extra gratifications and sources of gratification; nor can others take them from him without claiming for themselves greater liberty of action than he claims, and thereby violating the law.

In past times the arrangements made were such that the few superior profited at the expense of the many inferior. It is now proposed to make arrangements such that the many inferior shall profit at the expense of the few superior. And just as the old social system was assumed by those who maintained it to be equitable, so is this new social system assumed to be equitable by those who propose it. Being, as they think, undoubtedly right, this distribution may properly be established by force; for the employment of force, if not avowedly contemplated, is contemplated by implication. With a human nature such as has been known throughout the past and is known at present, one who, by higher power, bodily or mental, or greater endurance of work, gains more than others gain, will not voluntarily surrender the excess to such others: here and there may be found a man who would do this, but he is far from being the average man. And if the average superior man will not voluntarily surrender to others the excess of benefit gained by his superiority. the implication is that he must be obliged to do this, and that the use of force to oblige him is justifiable. That the many inferior are physically able thus to coerce the few superior is agreed on both sides; but the assumption of the communists is that the required coercion of the minority who are best by the majority who are worst would be equitable.

After what was said in the early chapters of this Part, it scarcely needs pointing out that a system established in pursuance of this doctrine would entail degeneration of citizens and decay of the community formed by them. Suspension of that natural discipline by which every kind of creature is kept fit for the activities demanded by the conditions of life, would inevitably bring about unfitness for life and either prompt or slow disappearance.

302. While absolute ethics thus asserts the right of property, and while no such breach of it as is implied by the schemes of communists is warranted by that relative ethics which takes account of transitional needs, relative ethics dictates such limitation of it as is necessitated for defraying the costs of protection, national and individual.

The truth recognized at the outset, that the preservation of the species, or that variety of it constituting a nation, is an end which must take precedence of individual preservation, has already been cited as justifying that subordination of the right to life which is implied by exposure to possible death in defensive war, and as also justifying that subordination of the right to liberty which military service and subjection necessitate. Here it must be again cited as affording a legitimate reason for appropriating such portions of the possessions and the earnings of individuals, as may be required for adequately resisting enemies. But while there is thus a quasi-ethical justification for whatever encroachment on the right of property is necessitated for the purposes of defensive war, there is no justification for any such encroachment for the purposes of offensive war.

No less manifest is it that the right of property is legitimately subject to one further restriction. Property must be trenched upon for supporting those public administrations by which the right of property, and all other rights, are enforced. In a society wholly composed of men who duly respected one another's claims, no such partial invasion of the right of property would be called for; but in existing societies and in such societies as are likely to exist for a long time to come, the nearest approach to fulfillment of the law of equal freedom is made when the various deduced rights are sacrificed to the extent needful for preservation of the remainders. Relative ethics, therefore, warrants such equitably distributed taxation as is required for maintaining order and safety.