By JUDE P. DOUGHERTY
In the midst of the turmoil that characterized the mid-decades of the last century, the English jurist Sir Patrick Devlin wrote, “If a society’s laws are based on a particular worldview and that worldview collapses, the laws themselves will crumble.” His 1965 book, The Enforcement of Morals, is still worth reading for its substance, but if for no other reason to see how foresighted he was. Few would contest his thesis that theories of law and practical rationality are but aspects of a larger intellectual perspective, metaphysical at its core.
Christianity was taken for granted in Devlin’s day, as it had been for centuries. Common law was supported by biblical morality and a natural law outlook. With the triumph of British empiricism, it was inevitable that appeals to biblical and natural law morality would soon be eclipsed by opposed theories often grounded in the utopian ideas of the academy. Whereas legislation is apt to be the result of mutual concessions, social policy fabricated by intellectuals is compelling in its clarity and can easily be translated into law by an activist judiciary.
We can see the effects of judiciary activism in two areas that will be briefly examined, the tendency to transform civil regulations into criminal law and the effect of judicial rulings with respect to the rights of property.
Attitudes with respect to the acquisition, use, and protection of property are but manifestations of one’s unexpressed philosophy of human nature. It goes without saying that absent personal property, be it real, intellectual, or monetary, one’s scope of activity is limited if not nonexistent. In this election year, the press and other media remind us of that daily.
At a deeper level, ownership is closely tied to one’s personal identity. A person is known by his holdings, by the land he owns, the home in which he lives, the things he has acquired, and these in turn are often expressions of his creativity, intellectual power, and work ethic. Property gives one a sense of independence and enables one to act in a multiplicity of ways that otherwise would not be possible. Recreation, travel, the expansion of social contacts, the support of social and political activity, and the furtherance of one’s own education or that of his children become possible.
Discussions of the rights and duties of property date to antiquity. Property is so bound to considerations of human nature that the ancients speak to us across the ages.
Plato had argued in the Republic that communal ownership — or the leveling of property generally — would be conducive to peace since then no one would be envious of another.
Aristotle responded to the contrary, noting that, in general, living together, and sharing in common in all matters, is difficult, most of all with regard to possessions. In any communal endeavor, human nature being what it is, some people are likely to work less than others and yet claim the same entitlement as those who work harder. To impose communal property on society, he says, would disregard the record of human experience, and can lead only to discontent and fractional conflict.
Aristotle was also convinced that only private property enables one to practice the virtues of benevolence and philanthropy. It is a minor point, but communal property would abolish that opportunity.
Plato and Aristotle apart, the most famous treatise on property from the ancient world is that of Cicero. In his treatise On Duties, he begins with the declaration that there is no such thing as private ownership established by nature.
“Property becomes private either through long occupancy (in the case of those who long ago settled in unoccupied territory) or through conquest (as in the case of those who took it in war) or by due process of law, bargain or purchase, or by allotment….Therefore, inasmuch as in each case some of the things which had been by nature common property became the property of individuals, each one should retain possession of that which has fallen to his lot, and if anyone appropriates to himself beyond that, he will be violating the laws of human society.”
Property, however acquired, is increased largely by wisdom, industry, and thrift, and belongs to its holder. Yet, says Cicero, in agreement with Plato, we are not born to ourselves alone. Our country and our friends make claims upon us. Fellowship requires that we help one another. “In this direction we ought to follow Nature as our guide, to contribute to the general good by an exchange of acts of kindness, by giving and receiving, and thus by our skill and industry, and our talents to cement human society more closely together, man to man.”
“Assistance to others must be rationally grounded,” he continues, “for many people often do favors impulsively for everybody without discrimination, prompted by a morbid sort of benevolence or by a sudden impulse of the heart, shifting with the wind. Such acts of generosity are not to be so highly esteemed as those which are performed with judgment, deliberation, and mature consideration.”
Those who follow American politics can easily identify concrete examples of impulsive, ego-driven generosity and the advantage of wealth in the electoral process.
In speaking of the duties of a man in an administrative position, Cicero says he “must make it his first care that everyone shall have what belongs to him and that private citizens suffer no invasion of their property right by an act of the state…for it is the peculiar function of the state and the city to guarantee every man the free and undisputed control of his own particular property.”
Cicero speaks of destroyed harmony when property is taken away from one party and given to another, or when officials intervene to cancel debt.
Although he speaks of the obligations of property holders, Cicero is clear that need does not create entitlement. Even so, he says, “let [property] be made available for the use of many, if they are worthy and be at the service of generosity and beneficence rather than sensuality and excess.” Acquire, use, enjoy, and dispose, but rationally, is his time-transcending advice.
Cicero’s distinction between “deserving poor” and the undeserving will be adopted by St. Jerome and St. Augustine and the fathers of the Church. In common they affirm that charity, to be efficacious, cannot be mindless.
Ancient theories of property cannot effortlessly serve as a guide to the formation of law affecting property rights today, especially intellectual property, yet the principles remain.
Cicero, of course, does not address expropriation of property by taxation, nor the peculiar form of property-taking that is common to the regulatory state of the current era, which employs complex regulations, rule-making, and unilateral administrative interpretations to penalize financially businesses and private individuals.
These are the fruits of aspirational laws that are often poorly drafted and poorly understood, and which transfer enormous discretionary power to the bureaucratic apparatus, which employs the zeal of ideological prosecutors to seize property and holdings and to punish political or cultural “enemies.”
More than one legal commentator has noticed the growing tendency of the modern state effectively to transform regulatory violations into criminal matters which do not even require evidence of malicious intent or awareness of the conditions giving rise to the alleged offense. To the modern regulatory state, traditional notions of “what is mine and what is yours” are secondary to the act of expropriating property in order to grow and empower the state.
Powered by WPtouch Mobile Suite for WordPress