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chapter 8: Greek Philosophy of Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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Greek Philosophy of Law
Hitherto the law has gone on in a course of orderly development from the days of the pristine savage, untroubled by any philosophical speculations. The savage had his ways of legal acting because he could not act otherwise. The primeval hunter has gone about developing further the primitive institutions according to the best light that he had, but his light is to this enlightened age mainly darkness. The pastoral nomad and the first agriculturists had carried the development still further, until at last civilization had slowly adapted primitive ways to enlightened conditions. To give the laws a greater binding force, they had been accounted for as being given from God. The Greeks in their high stage of civilization had gotten rid of almost all the primitive notions, individual property had been developed, a fixed and settled form of marriage, a monogamous family, the recognition of the citizen’s duties to his country, to his family, to his fellow citizens, had all become clear. Individual liability for individual acts had been made plain. The laws, as providing for all these relations, were well recognized. They had been put into written form. The state had assumed the duty of deciding all legal controversies for the benefit of the citizens, and it had furnished tribunals, poor as they were, for deciding these controversies. The state had also furnished through the assemblage of the citizens a means for changing or adding to the laws. This made it possible, instead of the long wait for the development of a new or altered custom, to show by act of the legislative assembly the general acceptance of and acquiescence in a new custom or law. Now the laws, when so passed, disclosed that they were being enacted with a conscious purpose in the minds of the legislators. These are all undoubtedly great advances.
As we have noted before, the precepts of morality, due to the general sentiments of right, were changing from age to age as humankind was improving. The improvement in such moral ideas of the rightful could not but be accompanied by improvements in the law. It could be seen by many thinkers that they themselves were far above most of their fellow men in an improved moral outlook. To such individual men some of the laws seemed to be wrong both in apparent intention and in application. To be able to say that those laws were in fact wrong, it must be said that they were wrong according to some standard. What, then, was this standard? It would not do at all for the critic of the law to appeal to his own mind as the standard; he must create an artificial standard of some kind. It was apparent that it could no longer be said that the laws were divine, because it could be seen that they were being made by human agency, and it was also apparent that those laws were being passed with a conscious, purposeful intent in the citizens who voted for the laws. But there still remained the old idea, inculcated in the priests, that law came from a god or the gods.
By speculation on the nature and omnipotence and omniscience of the gods it was deduced that human laws ought to correspond to the laws decreed or that would have been decreed by the gods. This standard was simply what any one’s mind would ascribe to the gods. This standard, so artificially created, was said to be the law or laws that were eternal and unchangeable, for they must be eternal and unchangeable if they were divine. As developed by the Stoics, this idea of law changed its name into natural law. This eternal and unchangeable law could be ascertained only by the power of individual reason, but what one man would think entitled to be called such law, another man might think not at all such.
In the application of this standard to human laws, there was necessarily created a distinction between human law actually in force and being obeyed, which was called the positive law, and that other kind of ideal, unchangeable, and eternal law, whenever the laws differed from what the mind of the observer would prescribe as eternally just and right. But mankind has always been dominated by phrases, and when it was said that the laws were not in accordance with natural law, the hearer accepted the statement. The hearer did not go further and say that what this man means is that the human laws do not correspond with what this man has in his mind as that which he has reasoned out and decided that his own reason would decree if it were making the laws. But it is plain that this natural law of reason was merely another human construction.
In the Antigone of Sophocles the lawmaker had decreed that any funeral rites paid to certain traitorous persons named would be unlawful acts. This was, of course, a bad law because it applied to particular persons; it was not general in its application. If the law had been that any funeral rites paid to any traitor should be unlawful, and had been in force when the traitor died, the law might have been good. As the matter stood in Greek law, the edict of the lawgiver was invalid as ex post facto. So there was no need for Sophocles to appeal to anything but human law. Antigone, recognizing as the law of nature or of god the age-old custom that the surviving relatives must bury the dead with appropriate ceremonies, wilfully disobeyed the human law of King Creon, who had made the law. When charged with the criminal act, Antigone pleaded the excuse, now considerably time-worn, of the higher law. She says of Creon’s law: “It was not Zeus that proclaimed such a law nor does Justice that dwells with the gods below set such laws for the obedience of men; nor did I deem that your decree could be so strong that a mortal could overrule the unwritten and unfailing laws of the gods; for their life is not of to-day nor of yesterday but for eternity, and no one knows when they appeared.” The fact here was that Sophocles did not know what the Greek law was.
Again in his Oedipus Rex, Sophocles returns to the thought of these higher laws. He there speaks of “laws that in the highest heaven had their birth, neither did the race of mortal men create them, nor shall oblivion ever put them to sleep, for the power of God is mighty in them and never groweth old.” This law is ordained, according to the poet, by the divine power of reason. Since this thought has been of great force in Roman and in modern law, we may here quote Cicero in his speech for Milo, on this natural law: “The law which was never written and which we were never taught which we never learned by reading, but which was drawn from Nature herself, in which we have never been instructed, but for which we were made, which was never created by man’s institutions, but with which we are all imbued.” In another place he sets forth the whole idea: “True law is right reason pervading us all, constant and eternal. This law it is impious to abrogate or to derogate from; neither senate nor people can release us from it. It did not begin to be law when it was written but when it sprang coeval with the divine mind. It is derived from that most ancient and principal nature of all things, to which all law is directed.” This law, the Stoics contended, was the production of the divine reason. But it is still plain that this divine law of reason is merely another human construction.
The German scholar Jellinek in modern times has taken this same old idea, dressed it up in a new set of words and boldly proclaimed that he has discovered the test of righteous law as contrasted with existing law and that if his test be applied to the existing law it can be converted into a righteous law.1 But this is merely another human construction of an individual mind asserting that his deductions are ultimate wisdom. The law has relied and will always rely upon the collected wisdom of men in modifying the law.
Demosthenes in one of his speeches says of the laws: “They have for their intention and purpose the just, the noble, and the advantageous, and this common purpose embraces all equally and alike. They must be obeyed for many reasons and especially because every law is a gift of the gods, an institution of wise men, a common agreement according to which all in the city have agreed to live. It is the means of correction of wrongdoers, whether wilfully or unintentionally they violate the law.” It is apparent that the distinction between natural or divine law and the actual law of the city was not present to the mind of the Greek orator. He said that the positive law was divine, which was the Hebrew doctrine. When the Roman jurists came to recast the Roman civil law into a world system, so that it should be shorn of all its special features inherited from the Roman city-state and its primitive rules, the appeal was to a supposed general law of nations, afterwards called the law of nature. The Romans were wise enough to find the basis of legal principle for general application in those common conceptions of law and justice which they found in force in all the civilized systems, especially the Greek, with which they came into contact. Because they found those rules of law generally accepted, they called them the law of nations.
Certain general principles of law, necessary to justice, the Greeks recognized. They denied the validity of legislation, civil or criminal, passed after the act to which it is applied. This prohibition of ex post facto legislation in criminal matters is in all our American constitutions, although retrospective legislation has in some cases been upheld in regard to civil matters. The Greeks recognized clearly in theory that a law must be in fact a rule, it cannot be an edict for a particular case; but the difficulty was that while their theory was sound, their practice was continually the opposite. So it was with liberty. There is no end of rhetorical writing about liberty itself, but the writers are referring to the independence of the state. The citizen is unprotected from the state, and the individual counts for nothing.
A Greek writer is summing up the difference between nature and the law. He says that law is the result of an agreement, but nature is a growth and the growth is almost certain to be right. In this statement, of course, he is confused by an appearance, for if the law is anything, it is a natural growth. What confused him was the multitude of regulatory laws among the Greeks, for he says: “The law has laid down for the eyes what they ought and ought not to see, for the ears what they ought and ought not to hear, for the tongue what it ought and ought not to say, for the hands what they ought and ought not to do, for the feet whither they ought and ought not to go, and for the mind what it ought and ought not to desire.” Then he goes on to say as to one’s following the precepts of the law: “Now if those who adopted such courses as these had any protection from the laws, whereas those who did not follow them but opposed them incurred loss, obedience to the laws would not be without advantage; but as it happens, legal justice does not protect those who follow the rules of the law. For it does not prevent the injured from being injured nor the aggressor from making aggression. It merely holds him over until punishment is inflicted.” But what this critic is looking for is a system of law where all will be law-abiding; and that, we saw in the opening chapter, is a stage of human existence to which man can never return.
Protagoras was adumbrating a fragment of truth when he explained by myth why men had laws. He said: “The first men were quite helpless and threatened with extermination by wild animals. Prometheus brought them intelligence enough to ward off this danger. They collected themselves into cities, but could not live in harmony, and they began to fight among themselves. Zeus then sent Hermes to men with a consciousness of shame and justice.” If he had had any conception of the actual human development he could have said that most men are so constituted as to have a consciousness of shame when they deviate from the community standard, that justice requires that the community standard should be applied alike to all, and that this community standard is embodied in primitive laws.
In the natural course we come to Plato. He is so much a great literary artist that even a paucity of matter on law can be atoned for by the perfection of his style. He lived in the age of a worn-out and defeated democracy at Athens. An aristocrat by disposition and by birth, he was naturally wearied by what he saw around him. Satisfied of the incompetence of men to govern themselves, he sighed for a return to older things. He compared his situation to that of a man who has taken refuge from a high wind behind a wall. To him it was impossible to take part in public affairs. The ordinary citizen, even one who desired to know something of philosophy, he compared to a wretched little tinker who has married his master’s daughter, attained some prosperity and is vastly intelligent in his own conceit. From the chaos which he saw around him he turned to nature, trying to connect the law which he saw with some background of natural justice.
With such ideas in mind Plato attempted to draw up a system of laws for an ideal state. It should have taught him something that he had gone to Syracuse at the request of Dion, and the Syracusan tyrant, the Elder Dionysius, had been so irritated by his legislative work that he had sold him into slavery, from which he was rescued by a ransom. How it was that under Greek law Dionysius could give to some slave dealer a good title to Plato is not explained, but it is accepted as a fact. Later in life he had gone on a second lawmaking venture to Syracuse for the Younger Dionysius and had created such a condition that he was glad to escape with his life.
Plato really had no conception of the practical circumstances that govern human life. He had never formed a general view of the vast influences of commerce in improving the destinies of mankind. “Trade,” as Bulwer says in his play, is “the calm health of nations.” It makes for honesty, fair dealing, mutual comprehension, sanity and soundness, toleration of others, peace among men, aggregations of capital, division of labor, the ease and comfort and grace of life, the leisure for study, and the amelioration of customs and manners that produces so large a part of civilization. Plato was attempting to turn society back to some little country town with primitive manners and institutions, where no money circulated, where no one worked but slaves, where the citizens would pass their days basking in the sunlight of Socratic discussions on the just, the virtuous, and the good, while a set of philosophers governed. The Greeks could well answer in the words of Omar:
Plato did not even understand that the commercial law was the most important kind of law, and this was proven by the fact, as Demosthenes said, that commercial law was the same over all Greece. To Plato commerce and trade were great evils, and he placed his ideal state so far from the seashore that it could have no trade. Land commerce could not exist without roads, although, having no idea of the cost, Plato supposed that a large country village could build good roads in all directions. He had no understanding of the difficulties at the bottom of the Athenian organization. Its mass of unpaid labor, in the form of slaves, never occurred to him as standing in the way of progress. Slavery was to him so natural a thing that it never occurred to him to wonder what his law of nature would say to such a condition. Probably he would have answered that most men are fit only to be slaves. But the fact that he had been sold into slavery himself ought to have taught him some indulgence for undeserved misfortune.
Plato, with all these limitations, could still say that, “until philosophers become kings or kings become philosophers, the state will never cease from its evils.” Of course, in saying “philosophers” he means Platos. This has almost the solid, rock-ribbed conceit of Goethe’s exclamation when he reached Rome: “Here I adore my own genius.” This calm assumption of Plato’s that a philosopher could make good laws has in it something pathetic. He had learned nothing by his double experience at Syracuse. It takes the accumulated errors, mistakes, and concentrated effort of many ages to make a good law, and yet a philosopher or a legislator assumes that he can dash off a full system in a few hours. Locke, with far more knowledge than Plato, attempted a system of laws for a little American colony. The result was a farrago of impracticable nonsense. Bentham, the great lawgiver, was so deluded that he thought that he knew all the law in the world. He concocted a constitution which he professed would suit the Khedive of Egypt, the wild Indian rabble of a newly freed South American republic, a state of the United States, and every other political society. Many philosophers have thought with Plato that God and nature had designed them for lawgivers, but doubtless they have all been mistaken.
Plato had the courage of his convictions, and he outlined his first-class state in the Republic and his second-class state in the Laws. We need not delay on the Republic. Plato himself admits his fantastic state to be utterly impossible among any sort of human beings which he knew. From the Republic the socialists could have obtained their ideas of a community of wives, intense neighborliness in the conjugal relations, and children brought up as state orphans. The looseness of morals at Sparta exercised a sort of fascination upon him. The governing body of philosophers in his Republic would have made a government where every day would be an open season for killing philosophers, or selling them into slavery.
The Laws sets forth his second-rate state, which he recommended as a practical conception. It was composed in his old age, and has some of the garrulous signs of senescence. He is fair enough not to foist this dialogue upon Socrates. More people have written about Plato’s Laws than have read the book. In that respect it is like that monstrous work, Hobbes’s Leviathan, which Hobbes supposed to be a juristic work. Grammarians, classical commentators, and scholars, who had no practical sense in regard to law and no standpoint of experience from which to judge Plato’s system, have been deeply impressed by the Laws, but there is really nothing of value in the book, although many simple souls with no understanding of the many sides to civilization have been impressed.
It is in the form of a dialogue in which a chattering Athenian holds forth to a chuckle-headed Spartan and a stupid Cretan. The Athenian is at no pains to conceal his contempt for the men he is talking to and lectures them like a school-teacher instructing a lower grade of children. The Spartan and Cretan drink in his words with absolute reverence. His state, of course, is a city-state. It is composed of 5,040 heads of families. The number 5,040 is, says Plato, full of magic, for it can be divided by every integer from one to ten. With five to every family, there would be 25,200 people. If the population shows signs of redundancy, it can be kept down by what is now called birth control, or the unfortunate redundants can be sent off as a colony. The land is to be allotted to the families in equal proportions, the number of households must never be decreased, and the land holdings are to be inalienable and never to be unoccupied. A widow could call upon her husband’s nearest undisposed-of kinsman to marry her, after the manner of the Hebrew custom called the “levirate,” which was noticed under Hebrew law in connection with the story of Ruth. All these provisions are copied from the original Aryan barbarism. The Athenians had long forgotten this system, and Plato was working off on them the lumber of discarded institutions, which Solon had abolished when he acted as lawgiver.
Over this sort of obsolete organization he places what he calls law wardens, an old disused sort of Athenian official. These law wardens are to be elected. Everything bad in the Athenian system he unerringly selects. He is so much a school-teacher, accustomed to instructing the young, that he has the naïve idea that if mature people are told by law to do something they will do it. There was never a greater error made by a philosopher. When the law meets the approval of the common sense of people generally, that law will be obeyed; but a law that a large minority thinks wrong and refuses to obey never will become actual law until the people come to a practically general agreement in its favor. Nothing is more absurd than continual and minute regulations. Plato has minute regulations for convivial intercourse. The music to be heard and the melodies to be used, he insisted, should be embodied in the law, after selection by qualified men. He would have had a censorship over the poets, whom he regarded as a dangerous class. Yet he had been a poet in his youth and had written much poetry. The public choruses were to be composed, one of children, another of young men, a third of older men from thirty to sixty. They were to sing that “the happiest are the holiest,” in older to inculcate a moral lesson.
A prayer-meeting of evangelicals would be a lively gathering compared to one of these symposia. Even the relief of getting artificially elated, as a relief against the songs, was to be denied these poor wretches, singing “the happiest are the holiest.” The drinking of wine was forbidden except on special occasions, and to young men not permitted at all. This prohibition, Plato sapiently remarks, would keep down the size of the vineyards. This might be so, but it would have taken an army of hired mercenaries to enforce the law.
His theory of human development was that after a great deluge there was a state of mankind where there were no poor nor rich, where men knew nothing of war and were more temperate and more just than they afterwards became. These men had no laws but dwelt in rocks or on mountains with no special intercourse, and every man was judge of his wife and children. To him, of course, the original unit was the family. He tells us that these separate families did not trouble about each other. As time went on, however, families, he said, came into union, and then they formed states by some sort of social compact, we may suppose, like Rousseau’s contrat social. For almost two thousand years this beginning for society has been accepted by intelligent men. It belongs with the dream of an original Golden Age.
He announces as his first general principle that the citizen who does not know how to choose between good and evil must have no authority in the state. Curiously enough, at that very time in Athens this principle was the standard to determine whether a man was insane or not. So his first principle reduces to the proposition that no insane man ought to have any authority in the state. This seems eminently proper. According to the law then in force at Athens, this man who knew not good from evil was subject to having a curator appointed to look after him. The Athenian law was certainly sounder than Plato’s conception, for it took care of the insane man, while Plato would have an examination merely to see if he could be elected to office.
Plato now proceeds to sketch the Spartan state with some respect and criticizes the Persians and the Athenians. Some of his minute regulations he takes from Sparta. Then he shows his prejudice against commerce and naval power, as noted above. He says that he is rid in his state of shipping and merchandise and peddling and innkeeping and customs and mines and loans and usury, and he is legislating for a community of farmers, shepherds, and bee-keepers. The law of marriage he regulates like a philosopher. He has no objection to easy divorce. A man must marry or pay a yearly fine. Celibacy he places among the heavily taxed luxuries.
His next proposal is that most laws should have a persuasive preamble, so as to make people believe them to be good laws. Persuasion, he wisely says, like a school-teacher renouncing the rod, is better than force. No one was to make a fortune in his state, for all the vocations of gain are denied to freemen. There seems to be no question about slavery in his ideal state, and the slaves are to carry on such menial work. There can be no silver or gold in his city-state. Money causes too many evils.
There are numerous provisions regarding the inalienable family properties and how to cultivate them. He probably never cultivated a farm in his life. He proposes a general election proceeding, where first the three hundred highest on the ballots are taken, then a second election for one hundred out of the three hundred, then a third election of thirty-seven out of the one hundred. These men so elected are to be guardians of the law (magistrates and judges), and thirty-seven is another magic number. Elective judges are intensely modern, and the worst institution in government. These men shall divide the citizens into four classes according to their property, like Solon’s four classes, and enter them on the registers. Any man owning more than his share of property is to have his excess confiscated, and if he makes a false return, he shall lose his share in the public property and in distributions of money. But since he had no money in his state, he seems to be wandering. Generals are to be elected and the citizens are to be enrolled in the army. Priests and priestesses are to be elected.
He lays it down that there should be few judges, and those few good, and that causes should first be tried before a court of neighbors. From this court an appeal should be allowed, and if necessary a second appeal to a still higher court, whose decisions should be final. A proceeding is provided for suing a judge for having intentionally decided wrongfully. This is the most vicious of all his proposals in the Laws. A litigant loses his case, then he sues the judge. The guardians of the law shall try the judge and if the judge is found guilty, he shall pay one-half the damages, unless the law wardens assess a higher penalty. The borders of his state would need to be closely guarded to prevent the judges from fleeing the country.
After providing the forms and ceremonies of marriage, and incidentally making some very harsh remarks on the female sex, he comes to the children. The state regulates their education, even to the games they shall play, and these games are not to be changed or altered because that would tend to make them, when grown up, seek changes in the laws. This seems to be very philosophic. The girls are to be brought up to the use of arms. Religion, temples, cultivation of the soil, division of the produce of the soil, are all minutely regulated. He provides for the resident aliens and slaves.
He treats of the offense of temple robbery as the worst crime, and its punishment is by fine or imprisonment or death. Treason comes next, then larceny. A discussion follows as to how to compensate the injured and at the same time reform the injurer. Even a lawsuit is to be educational. A madman can be guilty of a tort and shall pay only the exact damage, Plato says, but he neglects to say how the madman shall be reformed. It is not necessary to go into his discussion of homicide. His law on that subject is the Athenian law. Plato has the primitive law that the nearest relation of the homicidal victim prosecutes. But Plato adds that if he does not prosecute, the relative shall suffer five years’ banishment.
The old primitive notions crop out in Plato in regard to the trial of animals for killing a man or of a lifeless thing killing a man. The penalty for the animal is death, but the lifeless thing is to be taken to the border and cast into an adjacent country. This is the inherited taboo of the savage, who thinks the lifeless thing pollutes the land.
The killing of a thief entering the house is justifiable, but the killing of a footpad can be justifiably done only in self-defense. What would be self-defense against a footpad, he wisely leaves unexplained. The violator of a woman or a boy is to be killed by any male relative; and the killing in defending one’s father who is doing no wrong, or of one’s mother or child or brother, is justified. There are many other provisions, most of them evidently copied from the Athenian law.
Like most philosophers he dislikes lawyers. The Sophists had evidently been contending that Greece needed some sort of lawyers, or at least advocates. Upon them apparently he has the following passage: “To the many noble things in human life there clings a canker that poisons and corrupts them. No one would deny that justice between men is a noble thing and that it has civilized all human affairs. And if justice be noble, how can we deny that pleading is also a noble thing? But these noble things are in disrepute owing to a foul art cloaking itself under a fair name, which claims first that there is a device for dealing with lawsuits and that it is the one which is able, by pleading and helping another to plead, to win the victory, whether in a just or unjust case; and it also asserts that both this art itself and the arguments which proceed from it are a gift offered to any man who gives money in exchange. This art, if it be really an art or merely an artless trick got by habit and practice, must never if possible arise in our state.” An indictment of such men is provided for and a punishment.
He gives us a new idea upon the subject of sworn pleadings. All pleadings ought to be unsworn because lawsuits are frequent and half the citizens are thereby made perjurers. He evidently despaired of the Greeks’ ever becoming a truthful race. In a trial he believes that no expedients to excite sympathy should be allowed, but only what is just ought to be said, and in proper language, confined to the point. It must be said that the performances to excite sympathy at Athens have been paralleled in contemporary trials among us.
One curious regulation is that no man under forty is to be permitted to go abroad except on a public embassy. There seems to be in his mind the thought that there is something corrupting in travel, which a man cannot withstand until he is forty years of age. Plato also believed that no man should occupy public office after he is seventy years old.
It would appear that Plato’s Laws have much fine writing upon the duty of the state to cultivate virtue in its citizens. He has one long passage justifying a belief in the gods. But it must be apparent to any one who has read much of Plato that he had no faith in the gods of the vulgar. He really believed in the one Deity, the Moral Governor of the universe. But in the inhabitants of Olympus, with their passions and crimes, he could not have had the slightest belief.
His ideal second-rate state and its laws are simply an impossibility. Such a regimen has never been possible upon this earth among any sort of men. His attitude is essentially that of the school-teacher dealing with immature minds. Grown men can never be governed on such a basis. The idea seems never to have occurred to him that his fixed ideas of right and wrong would not in the coming ages be accepted by enlightened men. The purely relative conception of the moral ideas changing with a changing world, improving with an improving world, was beyond his imagination. But his idea of a fixed and immutable system of legal principles, born coeval with the divine mind, an idea not his own, was to govern legal thinking for many generations. Greek thinkers were prolific in ideas upon the law, but these were mainly the product of inexperience. Yet the actual laws were really fairly reasonable for their condition. It was the incapacity of the Greek in administration of the law that prevented him from even approaching a government of men according to law.
The Athenians, however, had developed the legal fact of private property, a fact which has remained without question until modern times. In almost the whole of Greece outside of the great commercial centers of Athens and Corinth the property conceptions of primitive society remained. In the primitive society within the group of family or tribe, everything, even the work of every day, is thought of as a matter to be done in common. All the possessions are common property. The land, the flocks and the herds are common property. But as soon as commerce and trade, based upon money as a means of exchange, begin to develop, there comes a great increase in the wealth in movables. Individual ownership is necessary to exchange. It is impossible for group and group to deal with each other in the hurried movement of commerce. At Athens this great movement of commerce placed practically all wealth in the form of movables. In Athens in the course of centuries it was found that the land itself must become an article of trade. Land that could not be sold and dealt in would have no exchangeable value, just as a parcel of real estate to-day to which a good transferable title cannot be given, is of no exchangeable value. The group ownership would, under those circumstances, in a commercial community at once yield to an ownership that could be made available in commerce. We shall see that the same influences at Rome gave to the head of the family this private, single ownership in land. In the feudal ages the various limitations on ownership took land out of the avenues of commerce. Long after movables in England had been freely transferable, land became so. The disposition of land by will became as easy as the disposition of movables by will had been for centuries and private property became the rule.
In the last century the philosophers have entered upon the quest of a theory to account for and justify private property, including in that term everything which is now included. Property in a thing generally means the right to exclude others from it. There is sometimes added as a part of property the right to contract, as a valuable property right. The explanations of property have been various. It has been explained in this story how private property came about. It was a natural development and it needs no justification. All the justifications amount in ultimate analysis to the same thing, whether the justification given is metaphysical or actual. The real justification is a more prosaic matter. Private property in real and personal property exists because if not so owned, the property cannot be bought and sold and disposed of in the ordinary course of trade. If the world is prepared to go back to Plato’s condition of a little town with inalienable family holdings and each holding self-supporting, with no trade or exchange of property in the town, with every householder owning enough forced and unpaid labor to cultivate the land and produce everything necessary for the family, it would be a very easy matter to get rid of individual private property. But this social organization is an idle dream, it could never be attained. On the other hand the history of law and the general history of the world teaches that the institution of private property is in accordance with a developed human mind, in accordance with developed human institutions. Nothing is more silly than to say that the law made private property. The fact is the exact opposite. Private property came to exist and it made the law. Until that human mind can be changed, it is idle to think of abolishing private property. If the law should attempt to prohibit the transactions of human life based upon private property, no one would obey the law. Therefore the search for a justification of the institution of private property is like a search for a justification of the constitution of the human mind.
[1. ]Georg Jellinek, 1851–1911. —C. J. R., Jr.