Justice as it Appears in the Main Fields of Law (Part Three), Property

Nomodiphas: On to property?

Philosophos: Sure, what do we know about property?

Nomodiphas: It is a right given in the Bible. Like all rights the government is commissioned to protect it. The government does this primarily by holding those that violate this right responsible through just punishment. A good example of this is found in Exodus Chapter 22. If someone steals an animal and kills it they are to pay back four or five times the amount to the owner. This not only makes the owner whole, but also justly punishes the thief. Because of the ratio, the risk is not worth the reward. If the thief still has the animal when he is caught, he must only pay back twice the amount. So restitution, when possible, is part of a punishment (as you have already said). However, this chapter demonstrates that when rights are violated there must be punishment beyond restitution alone (for if punishment was mere restitution, the risk would not out weigh the reward). The Bible also states that a man is to be punished even if he cannot pay back what he has taken. In that case he is to be sold as a laborer to work until he can pay back the owner for what he took. Finally, people have a right to protect their property. If a thief breaks into a home, the owner is justified in killing the intruder.

Philosophos: How does this Biblical standard stack up with our system?

Nomodiphas: We understand a couple of basic principles correctly. Our government recognizes a right to property and it punishes those that infringe on this right. When the thief has money, he is generally required to pay restitution. However when a thief does not have the means to pay back what he stole, the owner bears the loss. I think it is unjust for the owner to bear the loss. When the government can, it should restore what has been taken. When someone is murdered the government cannot bring them back to life, it is limited to holding the criminal responsible by punishing them. But if someone is beat to the point they cannot work, I believe the government should not only hold the criminal responsible, but should require the criminal to provide what he has taken—which in that case would be the livelihood of the victim.

The same goes with theft. Theft breaks a right, but goods are replaceable. When someone takes something they should be punished, but also required to replace what they took. If they cannot afford to replace what they took, they should be compelled to labor until they are able to pay back their debt. I think it is necessary that they pay back what they took as well as be punished and I think the best (though not necessarily the only) way to do this is to have them pay a large fine—and if they can’t afford the fine and restitution, have them work until they are able. I think that is where our system is failing. Prison seems unnecessary for non-violent theft and it fails to make the victim whole. We should instill a fine based system coupled with mandatory labor for repayment of stolen goods. As far as protection of property, we do well in generally respecting a man’s right to use violence to defend his property from an intruder.

Philosophos: How do we justify ownership of property?

Nomodiphas: It is a right given in the Bible.

Philosophos: Let me rephrase my question, what are the theories that justify acquisition of property? How do you as an individual come to own something?

Nomodiphas: There are four main theories. 1) First possession. When you discover something, it is yours. Since there is not much land to discover, nowadays we mainly apply this in the field of intellectual ideas. If you are the first to theorize something, then the idea is yours. We also use it for simple things, like movie tickets. They sell tickets and give out seats on a first come, first serve basis. You have a right to your seat if you got there first. 2) Lockian/labor theory. You gain ownership of property through labor. We own the work of our hands. For example, I plant an apple tree and tend to it. When apples appear on the tree, I own them. I may use them for myself or sell or trade them to another. 3) Utilitarian. Here ownership is a little less certain. The idea is that land should be used for its most economical/beneficial use. You have a right to your land so long as you are doing this. 4) Realist. In realist property theory property is not about ‘things you own’ rather it is about rights. Property is simply a bundle of rights: a right to exclude, a right to alienate, a right to use as you please, etc. These rights are not preexisting, but rather given by the government to the people. In our case because we live in a democratic society and our government is commissioned to serve the people, and since private property is a government given right, then private property must serve the people. Everyone has an obligation to use their property to serve the common good and the right to private property is only recognized so long as this is done.

Philosophos: Are any of these theories Biblical?

Nomodiphas: I would say a combination of the theory of first possession and Locke is Biblical. The Bible makes it clear ‘what we sow, we will reap.’ We own the fruits of our labor. If we are the first person to a piece of property, we have the first opportunity to work it. By working it we claim it and its products become our property.

Philosophos: What of the other two theories?

Nomodiphas: As for utilitarianism, no where in the Bible is justice tied to efficiency. It is smart to use property for its most economical use, but not required. In the parable of the laborers Jesus asks ‘do I not have a right to use my property as I wish?’ We have a right to use our property as we wish, even inefficiently like the man from the parable. There is no way we may use our property that would cause us to forfeit our right to property except using our property to unjustly harm another.

As for realism, it appears to me to be completely unjust. It represents another case of justice being completely flipped on its head. Property is a God given right. Justice requires protection of property rights. Good government should come into agreement with this truth. People can use their property as they wish—we don’t owe others anything and are not compelled to use our property for the benefit of anyone else. It is good to be generous and/or merciful and use your property for another, but this is not justice and the state cannot compel us to do this.

In contrast to God’s Revealed Word, realism insists that property is a created right. The government gives us the right to property and because it is a given right, it can be taken away. Because the government gives this right we have an obligation to use our property for the behalf of others. The question I have is: how far does this obligation extend? One need not look too far (e.g. the USSR or China) at how tyranny springs up whenever the state requires private owners to use their property on behalf of the common good. The institution of private property protects against tyrannous government—it is a space that the government can’t touch, a space from which people can resist injustice. When it is abolished, tyranny follows.

Further, collectivized property is inefficient. When everything is in common the natural reaction of people is to take as much out from the commons while putting in the least amount of effort (this is why those who abolish private property seek to de-nature people and change their inclinations, but even the brutality of Stalin through his forced collectivization and artificial famines could not de-nature people). A good example of the tragedy of the commons is over fishing of public waters or over grazing of public fields. When property is owned privately there is an incentive for wise planning and stewardship—one wants to continue to use the land in the future and pass it on to the next generation. Contrast this with the desire to catch all the fish that you can while you can for if you don’t, you fear someone else will.

All this is not to say that realists want to abolish private property—but their beliefs that property is not a natural right, but rather a created right and that property must be used for the common good severely undermine private property. This is in direct contrast to God’s teaching on property. In addition to this the undermining of private property leads to an undermining of liberty as well as decreased environmental stewardship and economic efficiency.

Philosophos: I’ll add one more example that ties into what you’ve been talking about before we move on. On can’t build new housing for the poor and turn a profit (this is why no one builds new low income housing). Under a realist theory we have a duty to serve the poor, to help them out. So the government forces builders to create low income housing. The builders lose a profit on them (because they must rent or sell these units at below market prices so the poor can afford them). To offset their losses, the developers must raise prices on others things. This increase of costs does not greatly hurt the upper classes, but it does out price a part of the middle class, creating a larger class of people in need of government aid. Their reliance on government aid increases the likelihood that they will be subject to despotism.

You have understood well the connection between private property and liberty. The more we move from an absolute notion of property rights, the more our liberty is imperiled. If the government is housing me, providing a job for me, giving me health care, and educating my kids how can I critique it? How can I guide it towards justice? Am I not far more likely to endure injustice out of fear of losing the provisions of the on which I am so reliant? But why am I reliant? Because the government takes all my property to pay for its programs! If I am reliant on the government I am no longer a citizen, but a slave! Only a man who asks nothing for himself from the government can put demands on the government. The government is our creation and was created to serve us. But we are not capable of making it serve us if we rely on it.

Are goals of happiness and equality honorable? Of course these are things to be desired, but liberty is more valuable. To provide for men to further liberty or equality infringes on liberty. How can one be a happy slave? And how can one be equal without liberty except for being equally enslaved. We must tolerate unhappiness and inequality in our midst for we can only be rid of them by sacrificing our greatest gift: liberty. Only by having property from which to support ourselves independent of the government may we criticize the government and live freely.

Too often our leaders think like Dostoevsky’s Grand Inquisitor. They are all too ready to take our liberty for our own good. But it was for our liberty that Christ came and died. Who are we to sacrifice it for the trivial comforts of this world? As for me I echo Patrick Henry and say ‘give me liberty or give me death.’ Happiness on earth, the furtherance of equality—no goal no matter how honorable is worth forfeiting our liberty.

Sorry, I got a bit off track. Before we move on I want to mention one last example of the undermining of the right to private property in our country. I will speak now of nuisance claims. There are a number of cases of people moving out into the countryside and then bringing nuisance claims against their farming neighbors for the smells that these farms produce. Many have won these cases. This obviously undermines agriculture, but it further strips the right one has to use their property as they wish—it undermines their liberty to choose the best means of providing for themselves.

Nomodiphas: I think that all we’ve said is true and smart, but I worry that we may be taking for granted the fact that scripture endorses private property. A system of private property is laid out in the Old Testament, but it seems to be superseded by the principles of property laid out in the New Testament.

Philosophos: And what might those principles be?

Nomodiphas: Communism. In Acts Chapter Four Luke wrote of the early church that “the whole group of those who believed were of one heart and soul, no one claimed private ownership of any possessions, but everything they owned was held in common. . . . There was not a needy person among them, for as many as owned lands or houses sold them and brought the proceeds of what was sold. They laid it at the Apostles’ feet, and it was distributed to each as any had need.” Besides that many groups of Christians throughout history have advocated communism, so it isn’t like this is a thought without precedent. I don’t agree with these groups, but that may be more to my personal biases than because of Biblical truth. It seems that they raise valid points. How would you counter them?

Philosophos: Indeed the early church in Jerusalem was a communistic society. It was a proto-Marxist community in that they more or less adopted the principle ‘from each according to their ability to each according to their need.’ Other Christian groups of believers, like some of the Hussites and the Anabaptists, have in the past adopted this philosophy for themselves as well. However, one key difference between this society and communism as we conceive of it today is that they held their goods in common by an act of their own free will. They did not demand that others give up their goods, nor did they tell Pilate or Herod that they must force all to keep their goods in common; on the contrary it was a totally voluntary act.

In fact in the very next chapter of Acts Peter reaffirms the right to private property. Ananias and Sapphira sell land and pretend to give the whole of the proceeds to the church (in order to look good in front of people). Saying they were giving all they had, they lied and kept a portion of their money for themselves. They were judged by God for their dishonesty. Peter asked them why they did this, for “while it remained unsold, did it not remain your own? And after it was sold, were not the proceeds at your disposal?” People can do anything they want with their property, including keeping it in common. But the right to private property was not erased even though the early church was communistic.

The early church adopted a system of communism because of conditions of persecution; the early church had to share all simply to survive. But just because this system worked well for the early Jerusalem church does not mean we must follow it. In fact Peter’s words demonstrate that communism was not mandatory even in this society. Given that, how could it be mandatory for us? Further Paul writes to a number of churches and in none of the letters do we have any indication that the other churches engage in any form of communism or that they should. They are asked to be generous and to help the persecuted Jerusalem church, but never are they told that they lack the right to their property. The early church in Jerusalem reaffirms the right to private property. It demonstrates that people have a right to do with their property as they desire and that if they so desire they may voluntarily give up their goods to the church to be held in common. This is legitimate, but any system that does not recognize the right to private property and seeks to compel people to give up their goods to some common institution (like Marxism and other forms of modern communism) is unjust.