An Apology And A Question (More On Legal Realism And Property Rights)

An Apology And A Question (More On Legal Realism And Property Rights) July 21, 2014

Elizabeth Stoker Bruenig has responded to my previous post. A few points.

First of all, no, I did not “accuse” Bruenig’s scholarship of anything, or “attack” it. When I said that I did not know if her exposition of Augustine’s views was accurate, that’s just precisely what I meant, and no more. I was not intimating anything else. Which is why I went on to say that that was irrelevant to my argument in any case. The fact of the matter is that I am deathly embarrassed of my ignorance of Augustine, who is the Church Father for whom the delta between his stature and my knowledge of his work is the biggest. I am really truly very sorry that what was intended as an attack on me was seen as an attack on anybody else.

With regard to the heart of the argument…

Bruenig writes that her and Augustine’s “legal realism” is merely a descriptive theory, not a prescriptive one, and that all it does is note that different property arrangements exist at different times.

Ok. Fair enough.

If that is all there is to it, then who could object? If all that “legal realism” does is to simply observe that sometimes property law changes, and that sometimes states confiscate property, who could object? (And why do we need a special name for it?)

Except that if this is true, and that if this is all that there is at play, then there are some points where I do not quite follow.

For example, I do not understand why Bruenig uses her description of Augustine’s legal realism as a retort to the desert theory of property, which is a normative, not a descriptive theory (that something is deserved cannot be a pure statement of fact–this is tautological). Bruenig is not simply correcting the record in re: a misrepresentation of Augustine’s view; she is clearly arguing that we should reject desert theory. But how does one reject a normative theory solely on the basis of a merely descriptive one, without imbuing it with normative implications or presuppositions? And how does a merely descriptive theory provide “strong directives for civil translation”? (I am assuming that means “translation into civil law/order”, but I’m not sure.)

In her post, Bruenig writes: “the author and I actually agree: states really are horrible stewards of property from time to time!”

Now, what this premises is that it is the states who are the stewards of property–which happens to be precisely the point that I am contesting. Where Ms Bruenig gets this premise, I do not know. She cannot get it from legal realism, because if she got it from legal realism it would not be a merely descriptive theory, although it appears in the course of her explaining legal realism.

Perhaps Bruenig will say that this is still mere description: since property is ultimately enforced by the state, according to laws enacted by the state, it is the state who is–as a descriptive matter–the steward of property. (This seems to be the meaning of her thought experiment re: Roman slavery.)

Except that–and again, perhaps I have lost the thread somewhere–I don’t see how it works.

For example, it is the case that we can see empirically that human life exists; we can see that at various times and in various places, human life has been more or less well protected by states; we can see that sometimes human life is protected by the state and sometimes destroyed by the state, and sometimes destroyed with the license of the state; often states take it upon themselves to define what human life, precisely, is (or where it begins, or ends). And indeed, while many states have been very enthusiastic destructors of human life, it is still the case that most human life has been, directly or indirectly, nourished by the institution of the state (since most human life, presumably, would not be there if we lived in a Hobbesian state of nature). Yet it would seem odd to describe the state as “the steward” of human life. Protector, perhaps. But not steward. Nor would it seem germane to the question of whether the state can properly be called the steward of human life to note that sometimes–even very often–states have behaved, and do behave as if they are.

This is a key but subtle distinction. We are all agreed that property rights are enforced through the states, as are all rights. And we are all agreed that very often states behave as though they are at complete liberty to reshape and respect (or not) those rights. It does not follow that these rights have no content–either descriptively or prescriptively–apart from the state.

Bruenig goes on to write:

Because of how property laws are set up, wealthy people can keep amassing their wealth for generations while the poor suffer, and the poor have no recourse but to hope the wealthy choose to slide a little their way.

Why is this schema terrible? It observes state conventions of ownership that are out of joint with the rights of persons to legitimate use of God’s creation. Therefore the state is acting unjustly.

This is both debatable and fair enough, but what still leaves “this author” a bit disquieted.

The problem for me, to get down to it, is that there is nothing in what Bruenig writes here, or in the rest of her post, or in anything else I have read by her on the subject, that gives me the impression that Bruenig believes anyone could have a principled objection to–let’s say–a total redistribution of property. I am not accusing Bruenig of agitating for communism; quite possibly she would deplore such an idea. I am asking about the principles at play. Put differently, what I am asking is whether, under what she takes to be correct Christian ethics, there is any scheme of redistribution to which one would be well-founded to object, not on grounds of expediency or consequences, but simply on the grounds of principle. Or is it the case that, according to her, under correct Christian ethics, all property is contingent and rights of property–being mere fictitious creations of the state, and all properly belonging properly to God–have only instrumental and not intrinsic value.

Or, to put it even more clearly, is it correct to say that people have a right to private property in the same way that we say they have a right to speak freely, or assemble peaceably, or any of those rights the recognition of which we typically take to be a mark of civilization? That is to say, rights, that (conceptually rather than historically) “preexist” the state in the sense that the state is duty-bound to respect them not on grounds of expediency but on grounds of higher law (which does not, of course, imply that any such right is absolute since rights conflict with other rights)?

That is the question I keep posing, and the question that Bruenig keeps evading.

That is the question the answer to which Bruenig always seems to be taking for granted and never explicitly states.

If Bruenig’s answer to this question is what I think it is–what I have been taking her to imply over and over again–then I maintain that her ethics are incorrect on both Catholic and Enlightenment grounds. If I am wrong about her answer then I have been utterly clueless–which is certainly a distinct possibility–and I apologize.

(P.S. Just to clear up any potential confusion: I don’t know what it might look like to “try to erect entire moral systems based on the idea of property”, but that’s certainly nothing that I would be involved with. I would be afraid of spraining something. Nor, to be clear, since this is a strawman that sometimes appears, do I believe in absolute property rights. It’s always funny to me, who wrote 5,000 words in a libertarian journal pillorying the libertarian theory of the state, to be accused of being a raving libertarian.)



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  • NicholasBeriah Cotta

    Her dumb argument is exactly what you say: all property belongs to the state, any framework for human ownership is a social construction, and that’s what we have to work with.

    This is where we all laugh because we know that while Patristics are always good sources, the earliest ones should hardly be treated as a good main source for modern economic doctrine – we actually are Catholics (we have an encyclical for that bro) and I’ll just quote Rerum, although we could pick through property assertions (in that lovely GIGANTIC SPACE BETWEEN GOD AND THE STATE) confirmed by Popes for the next 120 years,

    “To remedy these wrongs the socialists, working on the poor man’s envy of the rich, are striving to do away with private property, and contend that individual possessions should become the common property of all, to be administered by the State or by municipal bodies. They hold that by thus transferring property from private individuals to the community, the present mischievous state of things will be set to rights, inasmuch as each citizen will then get his fair share of whatever there is to enjoy. But their contentions are so clearly powerless to end the controversy that were they carried into effect the working man himself would be among the first to suffer. They are, moreover, emphatically unjust, for they would rob the lawful possessor, distort the functions of the State, and create utter confusion in the community.”

    If we notice here, there is a clear reference to natural law, to something between God and man that is not the state, and of course an allusion to socialists’ demonic methods (tongue-in-cheek, kind of). The state, if it was still the main arbiter of the “social construction” that is private property, would not be referred to as distorting its own function by removing private property. There is a clear limit set against the state here – and against what? God?

    Oh, and she got all up in arms about her scholastic credentials being attacked (on her one pet subject *hugs self*). Oh my, see my previous comment.

    • Dan13

      Yeah, I saw your previous comment. You imply that Ms. Bruenig is a stupid phony looking to carve out a niche to feed her ego. Not exactly charitable.

      Anyway, it is straw-manning to take Ms. Bruenig’s pleas for redistribution to be socialism. The right to property isn’t absolute, rather it is one of stewardship. I’d go as saying it is one of trusteeship. Here’s some basic Catechism stuff:

      “In the beginning God entrusted the earth and its resources to the common stewardship of mankind to take care of them, master them by labor, and enjoy their fruits. The goods of creation are destined for the whole human race. However, the earth is divided up among men to assure the security of their lives, endangered by poverty and threatened by violence. the appropriation of property is legitimate for guaranteeing the freedom and dignity of persons and for helping each of them to meet his basic needs and the needs of those in his charge. It should allow for a natural solidarity to develop between men.” (CCC 2402)

      So, property is designated for all, but it is divided up for pragmatic reasons.

      More, “The right to private property, acquired by work or received from others by inheritance or gift, does not do away with the original gift of the earth to the whole of mankind. the universal destination of goods remains primordial, even if the promotion of the common good requires respect for the right to private property and its exercise.” (2403).

      A few things here. First, there is no listed differentiation between “earned” property and “gifted” property: this can be possibly interpreted as a very slight argument against “deserts.” Second, it reemphasized that property belongs to mankind in general. Third, it asserts a right to private property for the express policy of promoting the common good. Thus, private property is derivative and exists for the policy of promoting the common good: i.e., because communal property systems tend to be inefficient (thus reducing the common good). Every Catholic discussion on private property *must* be qualified in that it exists to serve the *common* good, not necessarily the good of the owner.

      And even more, “”In his use of things man should regard the external goods he legitimately owns not merely as exclusive to himself but common to others also, in the sense that they can benefit others as well as himself.” The ownership of any property makes its holder a steward of Providence, with the task of making it fruitful and communicating its benefits to others, first of all his family.

      Goods of production–material or immaterial–such as land, factories, practical or artistic skills, oblige their possessors to employ them in ways that will benefit the greatest number. Those who hold goods for use and consumption should use them with moderation, reserving the better part for guests, for the sick and the poor.” (2404-05).

      Now, here are the limitations on this “right.” Owners of private property are supposed to use that property for *the benefit of others*. They are, in effect, trustees for society. In fact, they should be using their property for “guests, the sick, and the poor.”! The reason why private property exists is because the church believes that–if owners are charitable–it more efficiently takes care of the weak in society.

      However, owners don’t always take care of the weak. They don’t always reserve the better part for their disadvantaged neighbor. Instead, they often horde the goods for themselves. Instead of being good trustees of the common good, they exploit God’s gifts. And their fellow man–whose has a *primordial right* to a share of God’s bounty–suffers.

      The Church understand this. It knows that not all people will heed St. Basil’s advice and see that spare coat as belonging to the poor. That’s why the Church approves of labor unions and governmental efforts to address structural inequalities on the local, national, and even international level. So here’s the kicker:

      “Political authority has the right and duty to regulate the legitimate exercise of the right to ownership for the sake of the common good.” (2406)

      So, if generations horde inherited wealth and do not reserve the better part of the poor then government has the right–nay the duty!–to address the problem. As St. John Chrysotum wrote, “Not to share one’s wealth with the poor is to steal from them and to take away their livelihood. It is not our own goods which we hold, but theirs.” Surely, the government has a right to remedy theft?

      And, here’s a few quotes from a commentator of note,

      “While the earnings of a minority are growing exponentially, so too is the gap separating the majority from the prosperity enjoyed by those happy few. This imbalance is the result of ideologies which defend the absolute autonomy of the marketplace and financial speculation. Consequently, they reject the right of states, charged with vigilance for the common good, to exercise any form of control. ”

      “The need to resolve the structural causes of poverty cannot be delayed, not only for the pragmatic reason of its urgency for the good order of society, but because society needs to be cured of a sickness which is weakening and frustrating it, and which can only lead to new crises. Welfare projects, which meet certain urgent needs, should be considered merely temporary responses. As long as the problems of the poor are not radically resolved by rejecting the absolute autonomy of markets and financial speculation and by attacking the structural causes of inequality, no solution will be found for the world’s problems or, for that matter, to any problems. Inequality is the root of social ills.”

      “We can no longer trust in the unseen forces and the invisible hand of the market. Growth in justice requires more than economic growth, while presupposing such growth: it requires decisions, programmes, mechanisms and processes specifically geared to a better distribution of income, the creation of sources of employment and an integral promotion of the poor which goes beyond a simple welfare mentality.”

      “If we really want to achieve a healthy world economy, what is needed at this juncture of history is a more efficient way of interacting which, with due regard for the sovereignty of each nation, ensures the economic well-being of all countries, not just of a few.”

      I have read nothing of Ms. Breunig’s that disagrees with the Catechism or the above-quoted commentator. I have read nothing of Ms. Breunig’s that would indicate that her faith is false or that she isn’t a serious Christian. To say or imply otherwise is sinful and wrong.

      • NicholasBeriah Cotta

        I didn’t say she was a stupid but I did imply phoniness. Maybe it was charitable – I have read much of her stuff and come to the conclusion. Calling someone a phony if they’re a phony doesn’t exhibit a lack of charity, doing it prematurely or without thought or the good of the intended target in mind does. I thought that I stopped at a point I felt comfortable and I thought I was vindicated by her response to Peg – “I’m absolutely right about Augustine. Let’s just get that established straight out the gate….[continued to some stuff about other people at Cambridge thought she was right so let’s not argue about that anymore because her and the colleagues at Cambridge have spoken ex cathedra at this point.] ”

        Imagine if NT Wright was challenged on his Pauline scholarship – could you see him saying, “Well all my fellow chaps here at St. Andrews loved my paper on [Point A] so let’s get something straight, I am absolutely correct about my reading of Paul.” Of course, Wright wouldn’t do that because he’s confident in his scholarship and is a, as my kids say, “grown-up.”

        Not only that, I thought accusing people of ill motives was par for the course in the little back-and-forth, “The post accuses my scholarship of a touch of shoddiness and questions my faith; this is pretty typical of this author.”

        Your essay was well argued (if not a Gish Gallop in its size – I’ll keep that in mind as I respond) – especially if the point was that that God is the true owner of all things and we all have a duty to use everything in our power to give back to him and our fellow man. That is basic Catholic stuff, and I referenced social doctrine, so I thought you could assume I agree – the argument becomes whether Christian legal realism, a supposed “descriptive” theory, actually does describe what is intended and also there was another argument in there about where “human” property rights come from.

        Human definitions of property do not equal the state and vice versa. In her essay, she split up property in to “divine” right and then “human” right and then basically turned “human” in to state. This is *not* Catholic. The state is as big a social construct as “property” is as in, its being is only a natural extension of the human person and human community and it is not an end in itself (which means its goals are trumped by individual dignity) “The rights of nations are nothing but “‘human rights’ fostered at the specific level of community life”.. This means that the following is a silly descriptor of the Christian idea of property, “it demonstrates quite clearly that ownership as we actually experience it in the real world is dependent upon such laws and their enforcement.”

        There was also a huge leap she made that when social injustice exists, who ultimately is responsible – is it the state? Somewhat, although not completely – you wouldn’t think so from reading Bruenig though -“Why is this schema terrible? It observes state conventions of ownership that are out of joint with the rights of persons to legitimate use of God’s creation. Therefore the state is acting unjustly.”

        To her, the state is the end all and be all of human interaction – there is no space between the state and God, and rights to property only exist as far as the state defines them. This, of course, is silly because the state is a construction itself and both property and the state are an extension of the kingship granted to all beings under God. Arguing that because there is no absolute right to property, the “Lockean” idea of property ownership (and primarily acquisition) is wrong and therefore all property belongs to the state to be doled out is a ridiculous line of thinking. If X= there are no “absolute” property rights, then Y= property rights are left solely to be defined by the state. That is bad logic and one that ignores the better argument, the natural right to property – Let’s refresh what natural rights are: “The exercise of freedom implies a reference to a natural moral law, of a universal character, that precedes and unites all rights and duties[265]. The natural law “is nothing other than the light of intellect infused within us by God. Thanks to this, we know what must be done and what must be avoided. This light or this law has been given by God to creation”[266]. It consists in the participation in his eternal law, which is identified with God himself[267]. This law is called “natural” because the reason that promulgates it is proper to human nature. It is universal, it extends to all people insofar as it is established by reason. In its principal precepts, the divine and natural law is presented in the Decalogue and indicates the primary and essential norms regulating moral life[268]. Its central focus is the act of aspiring and submitting to God, the source and judge of everything that is good, and also the act of seeing others as equal to oneself. The natural law expresses the dignity of the person and lays the foundations of the person’s fundamental duties”

        This right supersedes the state’s right to define property and also, is the basis for the state’s creation itself. Any other logic assumes that the state is the sole medium in which we should view our relations with each other. It’s a shallow and, let me use your terminology toward me (in the interests of tamping down the rhetoric), SINFUL way of looking at the nature of the state and property.

        You can see the fruits of this incorrect “descriptive” theory in that prior statement, I will repeat it: “Why is this schema terrible? It observes state conventions of ownership that are out of joint with the rights of persons to legitimate use of God’s creation. Therefore the state is acting unjustly.”

        It ignores this:

        “An absent or insufficient recognition of private initiative — in economic matters also — and the failure to recognize its public function, contribute to the undermining of the principle of subsidiarity, as monopolies do as well.”

        “If there’s a problem, the state is unjust.” Wrong – because it is no the sole duty of the state to solves problems, define property, define social interaction, etc.”

        Note: I used exclusively John Paul II’s compendium of social doctrine solely for reference in this comment in part because of its breadth, and in part because I live in the comments section, and judging by the amount of upvotes I have on Disqus, I am absolutely right about my reading and choice of the compendium of social doctrine.

  • montanajack1948

    To whom does “property” belong–to the state, to the wealthy who can afford it, to the strong who can seize it, to squatters who settle on it, to whoever most needs it, to whoever can make best use of it, or to someone who claims to have been given it by God? Each of those answers is problematic in various ways, which is why different answers have been given throughout human history.

    First of all, someone has to define “property,” and then someone has to police and enforce that definition, which clearly doesn’t “exist” in nature, since different tribes and societies have had different notions of it (which makes the state a pretty strong candidate for ownership, by the way). Someone had to come up with the idea that it’s possible to possess, as “property,” pieces of land (among other things) that one is neither using nor residing upon. The idea of “property” that we in the West have inherited may be better than other ideas, but it’s still an idea, which is to say, a human construct. So is the idea that we all have the right to Life, Liberty, and the Pursuit of Happiness; that’s an idea that I happen to like very much, and one which I’m willing to defend, but it’s a human construct just the same. Certainly God never mentioned it anywhere in the Bible, at least so far as I’ve been able to find.

    The bottom line regarding “legal realism” is this: if you’re alarmed by the possibility that all of our rights and all of our property could, by this logic, fall prey to who knows what kind of abuse or even totalitarian revocation–you’re right, they could, just as they always have, even before anyone came up with the phrase “legal realism”. I doubt very much that either my rights or my property are protected by my insisting that God gave them to me; I find that relying on statutory laws agreed upon by my fellow citizens is much more helpful, and when I don’t like those laws, availing myself of ways to change (or at least protest) them.

  • claycosse

    Why did you apologize? I read your post and in no way was it an attack on her Augustinian scholarship. I guess beginning by humbling yourself fosters reasonable discourse.

  • Wraith

    This spat, has been intriguing and frustrating to watch unfold. I’ve actually read you “pillorying the libertarian theory” and enjoyed it, and so was surprised by your stance with regards to Mrs Bruenig. I read her as making a very strong case against what is generally considered to be the main foundation for “absolute property rights” and the (IMO ridiculous) system build upon such.

    On descriptive and prescriptive: my read is that, descriptively, legal realism holds that property rights are not universal absolute property rights, and (somewhat separately) prescriptively that Christians would be better off not stretching to accommodate the very particular view of natural law theory with regards to property (by particular, I mean I think there are views of property under the natural law tradition that aren’t as extreme as libertariansim/propertarianism).

    I do not believe that it follows (as you admit here) that it means anything more than that, that it is merely a rejection of moral systems based entirely on property. It does not mean that (again as you say) “total redistribution of property” is either objectionable or unobjectionable, rather it has nothing to say on it. In fact it leaves a great deal of room for any sort of prescriptive theory, which perhaps makes you uncomfortable.

    The question you end up asking is a good one, one which I am interested in hearing Liz Bruenig (and/or Matt Bruenig) answer, but I think the argument rejecting universal absolute unconditional property rights stands without that answer.

    For my own opinion, I think that property rights, as far as it goes, should be the right of someone to feel “reasonably secure in their property” but should certainly not go beyond that. This does mean that, although it not an absolute right, the state can’t arbitrarily seize your things (or arbitrarily redistribute them). It’d have to be justified. I think this is inline with Christian ethics, US law, and even the Universal Declaration of Human Rights. This is due to consideration of your point about rights conflicting: Calling a right a “natural,” “universal,” “basic” etc, means to elevate it above other “lesser” non-elevated rights. The contemporary rhetoric surrounding property as a natural right however doesn’t mention “reasonable” and in fact treats it as *the only* natural right, to which all others (speech, life, practice of religion) are inferior. To me that is reprehensible and worth arguing against.

    My own impression of what the Bruenigs’ view would be, on what “the state is duty-bound to respect” with regards to property, would not be as terrible as you fear. To this I feel like you are indeed mistaken.

    Thanks for the thoughts, and be well.