Law at the Jesus Creed: David Opderbeck

Lawbook.jpgWe have a number of guest writers on this blog, including RJS (who writes twice per week and has done so for a long, long time — and I’m exceedingly grateful for her gift to this blog) and Michael Kruse. And David Opderbeck has been writing for us about law, and his posts reach into spaces this blog has never seen — and this post by David is a response to responses on other sites.

My post last week on law and the freedoms of contract and property garnered the attention of a number of folks from conservative circles, including Jay Richards of the American Enterprise Institute.  Richards argues that I “could use a few more tools in [my] philosophical tool kit.” One of those tools, he suggests, is a “finer-tuned” distinction between “absolute” and “fundamental” rights.  He suggests that the right to private property is a “fundamental” right.

What do you think about this proposed distinction between “absolute” and “fundamental” rights?  From the perspective of Christian theology, is private property a “fundamental” right?

Before I offer some additional thoughts, I should note one element of my earlier post that Richards picked up on:  my use of the term “third way.”  Richards correctly notes that this term historically has been used by socialists to describe their economic views.  My intent, however, was not to make an oblique reference to socialism.  We often use the term “third way” here on Jesus Creed to refer to an evangelically Christian sensibility that is neither “liberal” nor “conservative” as those terms have been used in the past hundred years or so following the fundamentalist-modernist controversies.  That is the sense I intended.

I am not a
socialist, though I appreciate some of the communitarian political theology of
thinkers such as John Milbank and Jurgen Moltmann; and while I appreciate some
aspects of liberation theology, I also am not a liberationist.  What I hope I’m driving at is more of a
recovery of aspects of the Christian tradition concerning law and economics
that, in my judgment, have often been ignored by conservative evangelicals in
North America.

With that out of the way, let me pull out and examine one of
the philosophical tools often employed by folks who argue that private property
is a “fundamental” right: 
John Locke’s labor theory. 
Locke argued that, without the efforts of human beings, the creation
exists in a “state of nature.” 
No one has a right to possess nature in itself.  However, when a person mixes his labor
with the state of nature to produce something — for example, when a farmer
causes the land to yield crops — that person has a natural right to possess
the fruits of his labor. 

This is because, according to Locke,  a person “owns” his own body,
and therefore owns what his body does.   Locke summarizes this as follows in his Second Treatise on Government:   “As much land as a man
tills, plants, improves, cultivates, and can use  the product of, so much is his property. He by his labor
does, as it were, enclose it from the common.”  Absent such a right, Locke further argued, people would have

little incentive to exert their labors. 
Locke’s natural law property theory deeply influenced Anglo-American
jurisprudence prior to the rise of “legal realism” in the nineteenth
century and even thereafter.

Locke, however, recognized that this natural law property
right must have limits.  These
include the “enough and as good” and “waste” provisos.  In brief (and ignoring a number of
fissiparous disputes among Locke scholars about the nature of these
provisos):  “enough and as
good” means that an individual may appropriate from nature only such an
amount of resources that enough and as good of those resources are left for
others; and the related “waste” 
condition means that an individual may appropriate from nature only so
much as he can use, such that there is no remainder to spoil and go to waste.

Locke’s theory of property is in many ways appealing.  It is a “Christian” theory of
property, or at least a theistic one, which recognizes that
“property” has a moral dimension rooted in nature as God’s
creation.  And it includes
important conditions that help protect the general public good.  I think it falls short as a deeply
Christian theory, however, for at least two reasons.

First, it idealizes the individual within the “state of
nature” in ways that seem more indebted to the Enlightenment than to the
Hebrew and Christian scriptures. 
The “cultural mandate” in Genesis 1:28 is not an invitation to
autonomous individuals to add labor to what God made on the first five days and
then to take possession of the resulting fruits of those labors.  The adam
of Genesis 1 is generic humanity, not an individual, and the charge of
Genesis 1:28 is one of vice-regency and sub-creation, not one of individual
private ownership.   Vice-regency and sub-creation may entail
some individual private ownership for pragmatic reasons of organization and
efficiency (and indeed, I think this is the case), but Lockean labor theory, I
think, improperly prioritizes individual private ownership as a
“fundamental right.”

Second, Locke’s theory seems to distance God from the
created order, in common Enlightenment fashion.  It is as though God wound up the “state of nature”
and then stepped out of the picture. 
The Hebraic concept of Divine immanence in and sovereignty over creation
is much more robust than Locke’s state of nature.  We see this, I think, in God’s charge to Israel before the
conquest of Canaan: 

When the LORD your God brings you
into the land he swore to your fathers, to Abraham, Isaac and Jacob, to give
you–a land with large, flourishing cities you did not build, houses filled with
all kinds of good things you did not provide, wells you did not dig, and
vineyards and olive groves you did not plant–then when you eat and are
satisfied,  be careful that you do
not forget the LORD, who brought you out of Egypt, out of the land of slavery (Deut. 6:10-12).

This seems to represent the opposite of Locke’s labor
theory.  The property theory
underlying the Old Testament law is bound up with God’s redemptive covenant,
not with individual fundamental rights of ownership resulting from the exercise
of labor.

The property theory reflected in the Old Testament law, of
course, is problematic for us today because it also is inextricably tied to herem warfare.  No Christian theory of property should claim a right of
conquest based on covenant prerogatives — although unfortunately such views
have at times been a theme in Christian history (one example is Augustine’s advice concerning the
).  So here we must
refer also to the ways in which the Old Testament notions of the covenant
community are taken up and transformed in the New Testament, and particularly
by Jesus in the Sermon on the Mount. 
But that is a subject for another day.

Is Locke’s labor
theory an adequately Christian theory of property?  Are there Christian theories of property that extend beyond
the modern categories of “capitalist,” “socialist,” and “communist?”

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  • Yes, private property is a basic human right which explains the prohibition against “stealing.” Locke’s approach is predicated on social contract theory. Christian understandings of private property originate from the Imago Dei.
    Sadly, evangelicals are so unfamiliar with Eastern Orthodox and Roman Catholic teachings on property rights (as a basic human right) that we exhaust energies in conversations arguing principles predicated on different presuppositions.
    As we learn in Compendium of the Social Doctrine of the Roman Catholic Church property rights are fundamental and basic human rights because it serves as the basis for economic empowerment and helping the poor enhance their dignity as image bearers of God. …
    [SMcK: the author of this comment then added a long, long quote from the CSDRCC. I have deleted it and asked Anthony to summarize it briefly for us.]

  • RJS

    Well, this post isn’t going to get much play alongside the other post this morning – but interesting ideas David.

  • Scot McKnight

    Anthony, that comment is too long. It’s the sort of that prevents discussion since many will say “Unless I read that I can’t interact.” Please summarize for us and I will edit it back to manageable length.

  • Rick

    “…according to Locke, a person “owns” his own body, and therefore owns what his body does.”
    “The adam of Genesis 1 is generic humanity, not an individual, and the charge of Genesis 1:28 is one of vice-regency and sub-creation, not one of individual private ownership. Vice-regency and sub-creation may entail some individual private ownership for pragmatic reasons of organization and efficiency (and indeed, I think this is the case), but Lockean labor theory, I think, improperly prioritizes individual private ownership as a “fundamental right.”
    Does one then “own” his/her own body?

  • dopderbeck

    Anthony (#1) — is the command against stealing based in the idea that private property is a fundamental individual right — or is it rather based in a more integrated social order in which God and community come before the individual? (Hint: what are the first five commandments, and how do they relate to the latter five?) I agree with you that Catholic Social Teaching going back to Rerum Novarum speaks in terms of property as a fundamental right. I would question that usage, but even more so I’d want to carefully consider the distinction’s between “personalism” in CST and the (IMHO) more highly individualistic anthropology of Locke and of contemporary libertarianism.
    RJS (#2) — yes I see that! But let me note that this post and my previous one are dealing with exactly the same question as the Falwell post: twisting Biblical ethics towards libertarianism based on sub-Christian philosophies.
    Rick (#4) — the short answer, I think, is “no,” not in the modern sense of “ownership,” which implies a radical sort of autonomy. The longer answer would derive rights of bodily integrity from the principle of being made in God’s image and being created for community. So: an individual ought to be free from violence, unwanted sexual advances, and so on. But, an individual is not ethically free to do whatever he wants with his own body — e.g., to gratuitously harm others or one’s self.

  • T

    Your critiques of Locke’s theories are sound (at least for those who purport to hold to them as extensions of their Christian faith). Let me add a few more:
    Locke’s theory also overplays the significance of human labor in the scriptural story, whether for justifying property rights or any other kind of right vis a vis God or neighbor. Yes, humans work and the worker deserves a share of what he’s labored to produce, but this principle in the biblical narrative always sits atop a larger and ongoing reality of divine grace and charity that dwarfs the human contribution, even if not rendering it totally irrelevant. The scriptures are clear that God’s benevolence, not human effort, is literally what makes the world go ’round. Israel worked the land, yes–the land God gave and kept for them as grace. He blessed them (in grace) to be a blessing (in grace), whether in terms of the means of production (the land, the water, the sun, etc.) or ends (the harvest, the multiplication of animals, etc.). He allowed for limited private property rights, but also made it clear that he remained the true owner, and they mere tenants (and his possession themselves!), regardless of whatever their investment might ever be via the hands and minds God gave to them in grace. Even the “ownership” of one’s own body sits squarely within the larger activity of God’s charity, and is subject to his ownership because of his grace in providing it for use. Whatever we have in terms of property is always, from a Christian perspective, much more a story about God’s charity than our labor.
    I’ve said for years that Jesus was concerned about a sense of entitlement in his day, but it was not often (ever?) the sense of entitlement among the poor, it was the sense of entitlement among the rich that he repeatedly warned against as extremely dangerous for them.

  • T

    And, yes, David, you are dealing with precisely the same issue as in the Falwell post, but more directly with the issues as opposed to the personalities involved. I pray the issues get some more thought and attention!

  • “The adam of Genesis 1 is generic humanity, not an individual, and the charge of Genesis 1:28 is one of vice-regency and sub-creation, not one of individual private ownership. Vice-regency and sub-creation may entail some individual private ownership for pragmatic reasons of organization and efficiency (and indeed, I think this is the case), but Lockean labor theory, I think, improperly prioritizes individual private ownership as a “fundamental right.””
    It is true that charge is to humanity and not an individual, but how is that mandate fulfilled. The word “stewardship” has come down to us as some combination of two Greek concepts:
    1. eptiropos – an administrator or guardian of resources put in someone’s care by another
    2. oikonomos – household manager … someone who gives oversight to the operations of the household on behalf of the paterfamilias (head of household.)
    As Paul Heyne points out in Are we called to be stewards of Creation?, each of us are epitropoi to whom God has entrusted resources. Each of us is to be the oikonomos of the household God has entrusted to us. But nowhere does Scripture envision the earth as a household over whom an oikonomos … either as an individual or in the form of some select group … has been placed.
    As I wrote in our previous discussion, provisions like the jubilee make clear that God is the paterfamilias who has entrusted resources to us individually. God has not entrusted property to a societal oikonomos who then determines by some calculus what is appropriate for everyone to have. Even with the appointment of an Israelite King, the King was not given this sort of mission by God.
    Individuals have fundamental rights to private because God has entrusted that property to them as his epitropoi And while the property ownership is not absolute … it is held in trust for God and to be used for his ends … God has not entrusted property to a societal oikonomos.

  • T #6
    “He allowed for limited private property rights, but also made it clear that he remained the true owner, and they mere tenants (and his possession themselves!), regardless of whatever their investment might ever be via the hands and minds God gave to them in grace. Even the “ownership” of one’s own body sits squarely within the larger activity of God’s charity, and is subject to his ownership because of his grace in providing it for use.”
    All of this is true but the legal issue is not about how property relates to God. The issues is how we tenants are to relate to the property that master has entrusted to our fellow tenants. I think David sees red flags about Lockian individualism having twisted our views. The red flag I’m seeing as an attempt to establish a train of thought that says private property is not absolute (I agree), therefore a societal oikonomos will be given preferential say on property (I strongly disagree.)
    If I’m wrong here, I want to understand what practical impact it has on how we tenants relate to each others property that our property is held in trust for God.

  • dopderbeck

    Michael (#8) — I think this statement — “But nowhere does Scripture envision the earth as a household over whom an oikonomos … either as an individual or in the form of some select group … has been placed” — is just plain wrong.
    The adam of Gen. 1:28 is generic humanity, not “Adam” as an individual. By Gen. 4, there is an individual “Adam,” who comes much later in scripture (in the NT) to represent all of humanity as federal head. But even Adam as an individual is representative of all of humanity.
    So, I think the cultural mandate is a charge to humanity collectively to manage the creation, and I think that this implies the need to organize. I disagree with Kuyper that government is only the result of sin (as do many present day Kuyperians). In fact, I think the business “firm” as we know it today is a form of “government” or “collective organization” that is the sort of thing envisioned by the cultural mandate.

  • dopderbeck

    sorry meant to close the emphasis tag after the word “organize”

  • dopderbeck

    Michael (#8) — I think this statement — “provisions like the jubilee make clear that God is the paterfamilias who has entrusted resources to us individually” — also is plainly incorrect.
    The OT system of land tenure makes clear that the land was entrusted to tribes, clans and families — not primarily to individuals. The jubilee laws were supposed to serve to keep the land within these social structures. This is seen also in the provision for kinsman redeemers — an obligation to assume the debts of kinfolk. I don’t think there’s any possible way to read the OT economic law and end up with any sort of individualism.

  • RJS

    I am not going to wade in too deeply here – because I haven’t the time or the expertise – but it seems to me that as relatively wealthy Americans we often read scripture and the admonitions of scripture through the wrong glasses (or from the wrong perspective). We don’t sit alongside Jesus and look through the eyes of his disciples. We should sit in the place of the Pharisees, the wealthy land owners, the wealthy young ruler, and the OT kings – and take the admonitions, commandments, and criticisms to heart.
    I don’t think a fully socialist government is the way to go by any means, but when Jesus berates the Pharisees in Mt 23 – we sit in the seat of the Pharisees. When we read Mt 25 31-46 we stand condemned. As the kings of Israel were commanded to use their wealth and power for the good of the poor, the widow, the orphan – so to are we. Any method or program we support or push should be with this goal in mind. A limitations on government is part of this goal – but we have to look carefully at why and how we wish to limit government.

  • BIll

    There is a distinction between absolute and fundamental though it is very fine. In the civil society of the US, property ownership is not absolute, though it may be argued as a fundamental right with a limitation, for instance, being the power of government to take the land, which suggests a form of utilitarianism. And what is fundamental despite the sweeping language of the Constitution remains a function of the prevailing social contract – which is how I believe Jefferson read Locke when he added the concept of popular sovereignty to Locke’s idea and which concepts are embodied in the 1884 SCt opinion of Butcher’s Union – discussing inalienable (fundamental rights) and citing property ownership as one of the most sacred of those rights – reflecting tones from Locke and Jefferson).
    As such arguably the claims of Richards and like minded thinkers must fall within the categories of capitalist, socialist or communist as no other category is possible within their frame of reference – no room exists for God in notions of private rights of ownership with limits imposed by popular sovereignty.

  • #10 Dopderbeck
    “So, I think the cultural mandate is a charge to humanity collectively to manage the creation, …”
    As do I. But what do we mean by “manage.” I like Heyne’s traffic metaphor as a clarifier:
    “We can clarify the difference through the example of traffic. Air traffic controllers can reasonably be said to manage the movement of commercial airline traffic: they impose upon all the pilots flying commercial places a central plan that dictates precisely for each one the time of take-off, the speed and path of ascent, the route to be followed, and the time, speed, and path of descent and landing. But no one manages the flow of vehicular traffic on the streets of a modern city in this way. Drivers choose their own times of departure, routes to follow, speed of travel, maneuvers along the way, and final destination, reporting their plans to no one and continually revising these plans as they see fit. Drivers are not completely free to do anything they please, of course. They are constrained by the decisions of other drivers in the vicinity. There are also “rules of the game,” some of them very specific but others quite vague, that limit the choices drivers may make. Within these rules, however, and sometimes a bit outside them, drivers pursuing their own interests with very little concern for the interests of others (largely because of extremely limited knowledge of those interests) coordinate their interactions and arrive safely and expeditiously at their destinations.
    No one manages this process in the sense of controlling outcomes. Traffic engineers can influence the process by changing the timing of traffic lights, altering speed limits, or adjusting parking regulations, and over time they can increase their influence through street construction or closure. But they can neither predict not control the specific results. The most they can aim for is a smooth and rapid flow. An air traffic controller is an oikonomos. There is no oikonomos in the world of urban traffic, neither on the streets, nor in the control centers of traffic engineers, and anyone who aspired to become an oikonomos of urban traffic would have failed to understand the complexity of the problem.
    What is obviously true in the case of urban traffic because of its complexity is far more true, but, unfortunately, far less obvious in the case of a modem interdependent economy. …”
    So yes there is a cultural mandate to manage society in the sense of an urban transportation network. We create the environment where Gods various epitropoi can safely and productively employ the resources entrusted to them. We are all certainly epitropoi but no one of us or some elite group of us is the oikonomos in the sense of an air traffic controller.

  • bck

    Grrrr…just had a fairly detailed comment lost to the far corners of the internets. So in far less detailed, bullet point form.
    * Rights (property or otherwise) are human constructs allowing us to best manage in a fallen world
    * Christ gave up his rights as God; are we called to do any less?
    * A “libertarian Christian” perspective might be that we determine the potential/actual harm caused by governments (composed of sinners like us) enforcing the selflessness called for in the Bible outweighs the good that could result from enforcing the same
    * Therefore as Jesus willingly gave up his rights, we should encourage each other to willingly do the same, not at the mandate of the government
    * Not saying that government is unbiblical, rather it’s another imperfect option (just like my libertarian Christian perspective above) in our fallen world. Both can be informed by our Christian values, but neither one is the biblical ideal
    * Property rights in the Kingdom? Probably not, but not socialist/communitarian either. A la NT Wright, it will be better, more incredible than we can presently imagine.

  • T

    Michael (8),
    I understand that this is not really a forum for being thorough, and I agree that the vast bulk of stewardship is going to happen at the individual level and that’s how God intended it, but you haven’t really made a case as much as just stated a set of conclusions without support. God did give the individual commands of generosity on top of social structures which he built into the law, including those regarding collection of tithes which were consumed by others. Granted, God directly gave these instructions for Jubilee, and other laws for sharing and preventing total impoverishment that fit the economy of the day so that no human officials had to devise the system. So that creates an issue for today. Do we infer that God would prefer that no similar structures be built into our laws because the goals he was pursuing there aren’t worth the risk of human governmental error in this area, or do we infer that God would prefer that we attempt to mimic him with our laws and pursue the kinds of things that Jubilee and the other provisions for the poor were pursuing, the flaws of human government notwithstanding? Bankruptcy laws are a perfect example of an attempt by a human government to follow God’s example. Should we abandon such attempts even though it is an example of human government leaders effectively managing the resources of the nation in these situations? I tend to think the risks of attempting to follow his example are better than the risks of not doing so.
    Having now read David’s follow up, I agree with his follow up comments (obviously). To say that the biblical narrative and examples don’t allow for governmental management of resources is, as David said, just incorrect. I’ll grant that the theocracy of Israel is a special situation, but what do we do with that special situation? I argue above I think we have to attempt thoughtful, humble imitation in the economic arena.
    Finally, (Michael 9),
    The issue of our rights vis a vis God is the foundation of our rights b/n one another. (Even the drafters of the Declaration of Independence began with this.) This is the central logic of the NT, particularly as used by Jesus, including, very pointedly, in how God judges our economic behavior. Notice the logic of the story of Lazarus and the rich man, or the story to Peter’s “how many times must I forgive” question, or Paul’s logic in Philemon, etc., etc. It’s because of God’s life-giving-and-sustaining grace to all that God can and does re-write our “rights” vis-a-vis our neighbor. I can demand that my daughter share any toy she has with her sister because I give them both all that they live on. My grace makes her stinginess unacceptable. In the same way, our “rights” b/n each other are secondary to God’s goals and care for our neighbor.
    Now, I’m with you in that I don’t think that human governors ought to be the only or even primary ones given the power and responsibility to see that God’s resources are used correctly. I agree with you that from a biblical perspective, the role of law/government to facilitate proper use of property is limited on this front, but certainly not absent. Rome used it’s taxes not just for police work, but also for roads and all kinds of enterprises, and those decision-makers will answer for their decisions, but I don’t think God will say when judging those Roman rulers that in every instance beyond police keeping that they ought not have required the taxes at all.

  • Dave Corder

    Is the situation in Micah relevant? Royal officials, whom Micah calls “rulers of the house of Isreal” were apparently using something like emenant domain to take land away from people who had estates by tribal allotment (Micah 2:2). It seems that Micah’s call for justice is about the misuse of government power.

  • As to the provisions of gleaning, offerings, and such, one approach is to come at this from the standpoint of externalities. We are called to be our brothers’ keepers. We are to live with generosity toward others. But we know that sinful communities will not always do this well. Some will be stingy, thus saddling the communal responsibility of care for the poor with others. That creates an externality. Thus, to be sure that others do not externalize a basic commitment to the poor we mandate an “offering” to care for their needs. None of that in principal violates fundamental private property rights. The debate is over which things legitimately can be construed as a just safety net for the poor for which we are all accountable.
    But conversely we know, via Arthur Brooks, that those who don’t attend church weekly and believe it is governments role to take of the poor, are among the least generous. They are in effect externalizing their obligations to generosity by using government power to appropriate resources of others for the poor.
    That we should have institutions that protect the vulnerable is a far cry from saying that God has ordained and air traffic control oikonomos to make sure everything comes out “fair.”

  • Dave #18
    Yes! If you look at the prophets are repeatedly condemning it is failure at commutative justice … unfair transactions that involved false weights/scales and other misrepresentations … and remedial justice. Bribes were being passed at the “city gates” (courtroom) and the poor could not get a fair hearing … in the process loosing their land and property. The rich were also condemned for their lack of generosity.
    The prophets were not condemning the King for having failed to manage the distribution of wealth or failing to have managed society’s resources better. The presumption is that had the jubilee been respected, had generosity embraced, had the social safety net been funded and had commutative and remedial justice been enforced, that God’s tenants in the land would have been prosperous stewards and all Israel would have prospered. The presence of these qualities would organically lead to prosperity.

  • dopderbeck

    Michael (#19) — I’m not sure externality theory explains the gleanings laws. Those who otherwise would act voluntarily are then subject to gleanings laws to make up the slack of those who choose not to act voluntarily? I don’t think that’s even a proper externality analysis. Why not take the simple route: a “preferential option for the poor” is a Biblical model for economic regulation.
    BTW, who is saying anything about “air traffic control” to “make sure everything comes out ‘fair?'” Isn’t there some level of coordination and regulation that falls in between laissez-faire and Socialism?
    Let me come back to my favorite example: medicines. Should the government play a significant role in the direction of medical research, by redistributing tax dollars for centrally determined research priorities in the form of grants and subsidies? I think the answer to this is clearly “yes.” It happens now through the NIH, and IMHO the patent system should be tweaked with respect to end-use products. Not only that, I think here there should be greater international coordination through the GATT, UN and WIPO. Market demand in this instance tends to divert scarce resources to “lifestyle” uses that benefit a small number of wealthy consumers — e.g., multiple varieties of erectile dysfunction drugs, supported by expensive ad campaigns involving rich people sitting in bathtubs. Meanwhile, much-needed R&D on tropical orphan diseases gets scant attention.

  • RJS #13
    I agree that we need to be on guard against looking this from our standpoint of wealth. Let add a couple of other lenses.
    By today’s standards, the overwhelming majority of people have lived in poverty throughout history have live in poverty. Our question is not “What cause poverty?” The question is “What causes prosperity?” The existence of well articulated and protected set of property rights is at the core of bringing prosperity to the poor. Most of the poor in emerging nations live outside the formal economic system. It makes it difficult for them to buy and sell to anyone but those in their immediate vicinity. The poor are vulnerable to thugs and unscrupulous government officials. They can’t get remedial justice in the courts because their lives are outside the formal societal system
    Property rights facilitate trade because people can be certain about the title to the goods they buy. Property rights facilitate technological innovation. There is no incentive to innovate or improve if you know the minute you improve some powerful character will come along and steal what you produced. Property rights are essential to a growing and prosperous economy. So when I speak of people as God’s stewards with a fundamental right to property I am indeed standing beside my brothers and sisters in Haiti, China, or nations in Africa and demanding social justice so they may experience prosperity.

  • T

    Good example re: drug research & patent law. Intellectual property laws are especially interesting examples for this topic, mainly because of how uniquely they resolve the tension b/n private rights arising because of the labor of the inventor/creator and the the public rights based on the public good. I can see how your expertise would fuel some out of the box thinking on the issues of the post. Of course patents give a relatively brief monopoly period to the original holder, while copyrights last much longer, but both forms of property become public eventually. Private labor doesn’t justify unlimited private ownership; not even close.
    I wonder if the American narrative that is concerned with “the pursuit of [individual] happiness” gives more energy to the push for strong personal property rights than any fair biblical narrative, that is more concerned with God’s will being done on earth as in heaven (i.e., right/Godly dealings among persons)?

  • T

    I agree that stability is important to prosperity. The rule of law is important. Incentives within a stable system of laws are also important. I think we all agree that we’re talking about degrees regarding appropriate incentives and individual property rights, as David alluded to initially with the difference b/n fundamental and absolute rights. I’m still wondering though whether the degree of protection we generally argue for in the conservative evangelical church regarding individual property rights (usually vis a vis government) is really based on the scriptural narrative and its concerns and wisdom. I have a hard time reconciling these.
    This line you wrote to RJS bore striking resemblance to the thinking of the man who buried “his” talent in the ground: “There is no incentive to innovate or improve if you know the minute you improve some powerful character will come along and steal what you produced.” On the one hand, this is a true statement, and it is based on the same kind of thinking that the one who works in the field ought to expect to receive some of what is produced by that field. IMO, the conservative evangelical church been too quick to paint government inherently as some kind of “hard man reaping where [it] did not sow, and gathering where [it] scattered no seed,” rather than being open to the possibility that it too is an agent of God, charged with making the world more just. Couldn’t government just as easily be playing that latter role in a given instance based on the biblical narrative, even as it regards care for the poor? I’m actually a fan of appreciating what governments can and can’t do very well, and the list of what they can’t do well is staggering. But I also can’t help but think the biblical basis for Christians to defend property rights as strongly as they do in my circles is rather severely overstated.

  • Mich

    I don’t know much about the Law, and haven’t read Locke in decades, but I know that Jefferson pointedly changed Locke in the Declaration of Independence to read, “Life, Liberty and the pursuit of Happiness,” NOT Property.

  • But conversely we know, via Arthur Brooks, that those who don’t attend church weekly and believe it is governments role to take of the poor, are among the least generous. They are in effect externalizing their obligations to generosity by using government power to appropriate resources of others for the poor.

    Or perhaps – understanding the role of government and charity very differently – they regard their existing taxes, or at least a goodly portion thereof, as their contribution?
    Not a challenge or rebuke, just positing a different way of looking at things. (Myself, I’m more in favor of limited government and private contribution. But I tend to presume reasonable – or at least non-inimical – motives when possible.)

  • Mich @ 25
    Yes Jefferson did but that was why the reference to the Butcher’s Union Supreme Court decision where it was interpreted as directly referencing private ownership of property, and Fields, the justice who wrote the opinion called property ownership one of the most sacred of these rights.

  • Dopderbeck #21
    “BTW, who is saying anything about “air traffic control” to “make sure everything comes out ‘fair?'” Isn’t there some level of coordination and regulation that falls in between laissez-faire and Socialism?”
    The problem is I don’t know what’s being said. That’s why I’m pressing for clarifications. 😉 But by the same token I would ask back, who said a fundamental right to private property means there is no social mortgage on that property? In fact, others and I have been saying just the opposite.

  • Dopderbeck #21
    I don’t know enough about the medical industry to have an informed discussion. Subsidiarity would suggest that we first look for ways to achieve good without extensive government control. Is that possible? I don’t know. If not, then government must step in to rectify what may be an unhealthy or inadequate system.
    Also, with regard to intellectual property rights I thought you might be interested in this title from the Acton Bookstore, The Social Mortgage of Intellectual Property (emphasis mine):
    “The AIDs crisis in Africa has given the once-esoteric question of intellectual property rights critical and immediate significance. The issue of pharmaceutical patents is but one dimension of a broad and complicated area at the intersection of law, economics, and ethics. In this monograph, philosopher David Carey supplies an overview of the philosophical and legal foundation of intellectual property rights and argues that a Christian view of those rights is at once appreciative and critical. More specifically, while the Church¹s social teaching upholds the importance of property rights‹including intellectual property rights‹it also places all such rights within the context of obligations toward the common good. In this thought-provoking assessment of the field, Carey pays due attention at once to both economic reality and the demands of justice and charity.”
    This doesn’t sound much like a conception of absolute property rights based on Locke.

  • If we look at the Bible, there were three primary uses of wealth and teaching related to them:
    1. Consumption – Modest living
    2. Giving – Generosity is required of believers.
    3. Hoarding – Forbidden.
    There was little that could be done to influence productivity in the ancient world. The economic order was effectively a zero-sum game. As wealth was primarily measured in land, grain, and livestock, hoarding (amassing wealth) and over consumption was virtually equivalent to depriving others of these same goods. Thus, care for the poor was almost exclusively in terms of generosity.
    Over the past few of centuries, particularly the last two, we have learned to radically alter that which was previously unalterable. Through division of labor, technology, and trade we have found that we can radically increase productivity. That makes goods more plentiful at cheaper prices and allows many to specialize in labor that was previously unimaginable. Living standards rise.
    We now have a fourth use of wealth:
    4. Productive capital.
    The rich today do not have wealth primarily in land, grain, and livestock. Their wealth is invested in productive capital that is making wealth for them and others … providing jobs and making goods. The emergence of the idea of productive capital, and its accompanying institutions and traditions, has led to an astronomical rise in the material welfare. The impact it has had on humanity that dwarfs anything generosity has done. What are we to make of this biblically? The Bible is silent on productive capital because it did not exist then. We have to reason and discern based on basic biblical principles.
    We have done this repeatedly with other issues. We acknowledge that we have learned things about women in recent generations that cause us to go back and read scripture with different eyes. We acknowledge that we have learned things through science in recent generations that reshape how we read the Bible. But when it comes to economic questions, we take the modern steward of God’s resources today and dump her back into the biblical context and judge her on that basis (i.e., the person who is wealthy is a hoarder. The primary way to address poverty is through generous giving.) That we have learned important lessons about economic realities from Enlightenment and Modernist influences doesn’t make them any less valid anymore than with what we have learned about women or evolution.
    The fact is that Christian conceptions of property rights as a fundamental right (based on both practical and moral reasons) predates Locke and the Enlightenment by at least 100 years. Late Scholastics like Domingo de Soto and Tomas de Mercado were developing these ideas in Spain in the 1500s.

  • [continued]
    As I read Scripture I see at least four themes I think transcend cultures and time.
    I think the idea that God is creator and owner of all that is, and that we are his stewards is key.
    I think there is the idea that God intends each us to be epitropoi stewards of some share of his resources … we participate in our provision and the provision of others through generosity and trade. That necessitates that we have a fundamental right to control resources entrusted to us.
    I think there is the idea that there is a social mortgage. Subsidiarity makes clear the ownership is not absolute but the role of government is supplementary to the functioning of other institutions of society. Bias is toward addressing problems institutions and person closest to the problem whenever possible.
    I think that since we are God’s agents we are to have the same mind and heart as God. That means deep concern for the poor. However, unlike the biblical context, our focus on the poor is not just about sustaining life through charity, but restoring the poor to stewardship so they may produce goods, participate in their own provision, and have something to be share with others.
    Our economic realities are not anticipated in the Bible. We are left to discernment in light of the emergence of productive capital. The story of the Twentieth century was not one of rampant destruction because people’s property rights we too narrowly enforced. It is one of totalitarian states running rampant over human liberties … including property rights … totalitizing every sphere of human life. It is one of people in poor nations not being able to get traction on the prosperity ladder because of corruption and insufficient property rights. The general notion of private property is present in Scripture but experience has taught us how critical it is in checking destructive forces in the world.

  • As I see it, using the OT as a guide to public policy isn’t much better an idea than using it as a guide to science. Even as a big fan of private property, however, I agree there are problems with Locke’s formulation as it applies to natural resources. See the link on my name for an alternate suggestion.

  • dopderbeck

    Michael (#29) — I haven’t seen that book. It sounds like a good start. It remains problematic to classify patents as “property,” and IMHO it remains problematic generally to classify property rights as “fundamental.”
    There’s been an interesting dynamic in these posts: I examine one line from one paragraph of an Acton Institute website, and there’s all this kerfuffle about whether I’m a socialist, and defending the Acton name. Seems odd.
    I think I’ve said before that Acton puts out some good stuff. I’ve appreciate the Markets and Morality journal. But I hear much of this stuff through the ears of one who grew up in the conservative evangelical subculture, which as T pointed out is extremist on this stuff at times.

  • danderson

    How should we weigh fundamental right to property with the admonition to love God above all else and to love our neighbor as ourselves? I remember Philip Yancey writing about the fall of Communist Russia and his perspective was that it wasn’t because of a failed system, but because they took God out of the equation. Libertarianism and Capitalism,without the requisite necessity to include God, could lead to similar results.

  • #33 dopderbeck
    I hope I haven’t come across as accusing you of being socialist. That was never my intent.
    My context is Mainline Protestantism and middle of the road Evangelicals. I largely eschew conservative Christianity altogether. I’m inundated by liberationist theology and what David Miller calls Niebuhrian-Barthian socialism. My precinct votes 90-95% Democrat in every election.
    I’ve been to Acton University a couple of times and there clearly are people there whose views I would not readily embrace. But overall, and on balance, I find their stuff to be very helpful. I don’t know if you read their Occasional Paper Economic Personalism: A New Paradigm for a Humane Economy by Gregory Gronbacher. I think this piece lays the underpinnings for the overall school of thought Acton is pursuing.

  • dopderbeck

    Michael (#35) — no, the Acton blogger suggested that, but I think he also was confused by our indiosyncratic use of “third way” here.

  • Also, I thought I would add some background on my thoughts about jubilee and decentralized stewardship. It is central to my understanding of God’s vision for Israel and ultimately for humanity. From Ron Sider’s book “Rich Christians in an Age of Hunger,” after refuting the idea of absolute property rights:
    “… Biblical principles point in the direction of decentralized private ownership that allows families to control their economic destinies. As stewards of the land and other economic resources that belong ultimately to God, they have the responsibility and privilege of earning their own way and sharing generously with others. This kind of decentralized economic system empowers all people to be coworkers with God. It also protects everyone against centralized economic power that might threaten freedom and promote totalitarianism (as when the the state owns the means of production or when small groups of elites control huge multinational corporations.” (92, 2005 edition)
    I think Sider was the first to introduce me to this perspective I don’t think many would accuse him of being a raving libertarian. 🙂

  • RJS

    Well my comment #2 has been proven wrong – this has been a fascinating conversation.
    Michael, I am not against property rights, and I am certainly not for a communist or even socialist government. But I also think that as wealthy producers we look at this discussion through the wrong glasses (more so on the other post today than this one). The person who is wealthy is not necessarily a hoarder, but a person who approaches these questions and discussions with a primary lens of “protecting what is mine” probably is a hoarder. The way to address poverty is not through generous giving – but through working for a just system. A just system will not abolish property rights, but will put some limits on property rights.

  • David, are you familiar with this book by Nicholas Wolterstorff: Justice: Rights and Wrongs. I have yet to finish it, but it is a most interesting read. I wonder what your take on it would be because from my (limited) understanding, he is arguing against the classical, Aristotelian view of justice, and for individual rights which predate the enlightenment and something happening around the 12th-14th century, and I can’t recall the key name during somewhere roughly in that span. But he traces it back to Scripture. A most interesting read and I would be most interested in your take on it.

  • RJS #38
    Property rights are not simply a matter of personal protection of wealth. They are an integral structure to modern economies that have generated so much wealth.
    One of the reasons trade flows smoothly is that buyers can trust and verify that sellers actually own the things they say they own. People can invest knowing that a thug or government agent isn’t going to arbitrarily seize their property. It is firmly identified and enforced property rights that allows citizens to bring lawsuits against polluters because polluters are pushing costs of doing business onto their neighbors. Property rights are about society having clear boundaries so people can know how to relate to each other and to the artifacts around them. Property rights make it much more likely that the things that have been created will be cared for than most communal ownership options. As Sider notes, property rights place a critical check on creeping forces of totaltitarianism. Meaningful stewardship would be rendered impossible without clearly established property rights. Championing property rights isn’t about wealthy people trying to keep what they’ve got. It is a lynch-pin in creating a just and prosperous society.
    As I wrote above, the central theme of the OT prophets’ critique was against the violation of property rights in terms of both commutative and remedial justice. You wrote:
    “The way to address poverty is not through generous giving – but through working for a just system. A just system will not abolish property rights, but will put some limits on property rights. ”
    The problem throughout most of the world is not that property rights are too stringent and need to be relaxed. It is that formal rights do not exist for the vast majorities of people. One of the single greatest obstacles to overcoming poverty for billions of people is absence of clearly defined property rights and a judicial system that will justly enforce them. Investment is stymied. Trade is thwarted. There is a very strong correlation between high degree of secure property rights and economic prosperity.
    We can quibble about what precisely constitutes property rights in our advanced post-industrial society but the unmistakable barrier for billions around the world is absence of property rights.

  • dopderbeck

    Ted (#39) — it’s on my stack to read! Wolterstorff is coming next spring to speak at my law school so I’ll have to read it at some point.

  • Bob Porter

    Thanks so much for your extensive contributions to this thread. I especially appreciated your “It is one of people in poor nations not being able to get traction on the prosperity ladder because of corruption and insufficient property rights.”
    Sider and Rich Christians was also very significant in development of my thinking.

  • Sorry for the delayed response. It’s unfortunate that the earlier post was deleted for length because it is important for readers to know that property rights has historically between treated as the basis for social justice until recently. Evaluation does not engage Catholic social teaching at all lack good insights in a conversation about this topic. Nor does it reference Nehemiah 5 addressing the economic empowerment of private property.
    Again, if private property is not basic to human flourishing there would not be a commandment against stealing.
    We should not engage Locke on this issue until we have first wrestled with Christian teaching on the subject beginning here, for starters:
    Here’s a quote from the Compendium to Catholic Social Doctrine
    “By means of work and making use of the gift of intelligence, people are able to exercise dominion over the earth and make it a fitting home: “In this way, he makes part of the earth his own, precisely the part which he has acquired through work; this is the origin of individual property”[368]. Private property and other forms of private ownership of goods “assure a person a highly necessary sphere for the exercise of his personal and family autonomy and ought to be considered as an extension of human freedom … stimulating exercise of responsibility, it constitutes one of the conditions for civil liberty”[369]. Private property is an essential element of an authentically social and democratic economic policy, and it is the guarantee of a correct social order. The Church’s social doctrine requires that ownership of goods be equally accessible to all[370], so that all may become, at least in some measure, owners, and it excludes recourse to forms of “common and promiscuous dominion”[371].

  • David, Thanks, and I look forward to your assessment of that book and Wolterstorff.