I recently called attention to my essay “Natural Law, Natural Rights, and Private Property,” which appears on Liberty Fund’s Library of Law and Liberty website. Prof. James Bruce and Prof. Bas Van der Vossen each kindly wrote a critical response to my essay. (Their responses can be found hereand here.) They raise important questions, and in what follows I want to reply to their objections. (Naturally it will be helpful if you first read the three original essays before moving on to what follows.)
Reply to Prof. Bruce
Prof. Bruce focuses on the centrality of the family to my account of property rights. While he is correct to say that I put special emphasis on property’s indispensability to the well-being of the family, it seems to me that he overstates things a bit. My essay also called attention to the ways in which property is crucial to the flourishing both of individuals and of society as a whole. Even if one ignored the centrality of the family to the traditional natural law account of private property, then, there would still be grounds in natural law for a right to property.
In any event, Bruce thinks that my emphasis on the family leads to a conclusion that even I would have to grant is absurd. As Bruce rightly notes, the natural law theorist regards family as something that is good for us given our nature. In particular, I said in my original essay that given our nature, it is good for parents to provide for their children and good for children to respect and obey their parents. But I am committed, Bruce seems to think, to the claim that “If something is good for us, we are obligated to do it.” Hence if it is good for us given our nature to be parents, then it would follow that we are obligated to become parents. And this is absurd. For Catholic priests do no wrong in refraining from becoming parents, and neither do others who refrain from marrying and having families.
Naturally I agree that it is not wrong for Catholic priests and others not to marry and have families. But contrary to Bruce’s suggestion, what I said in my original essay does not imply otherwise. Bruce’s objection presupposes too simple a conception of specific human goods, and too simple an interpretation of the fundamental principle of natural law that good is to be pursued and evil avoided. No natural law theorist would say that “If something is good for us, we are obligated to do it, period.” Nor does their position entail that they should say it. Human nature is complicated, and what is good for human beings is, accordingly, also complicated. For one thing, human goods are ordered hierarchically. The lower goods exist for the sake of the higher goods, and can (all things being equal) in principle be sacrificed for the sake of the higher ones. For example, spiritual goods are higher than the goods that follow from our animal and social natures. Hence there is nothing in principle wrong with someone’s sacrificing the goods of marriage and family life for the sake of the higher good of the priesthood or religious life.
Even someone who refrains from marrying for other, lesser reasons does not necessarily thereby do wrong. Marriage and family are, after all, especially complex goods. For one thing, they are goods that one cannot acquire easily or entirely on one’s own initiative. One needs to find a suitable potential spouse (no small feat) and has to get the consent of that potential spouse (also often no small feat!) One has to be sufficiently mature, prepared financially, and sufficiently free of other commitments. One also has to be inclined to marry in the first place, and while most people are, some (for whatever reason) are not. And while for natural law theory we are never permitted to do what is intrinsically wrong, we are permitted to refrain from pursuing some goods if pursuing them would under the circumstances lead to greater harm. Marrying merely for the sake of marrying, even when one would strongly prefer not to, is obviously the sort of thing that can lead to great harm for all parties concerned. Perhaps one’s reasons for not marrying are not good ones. Or perhaps one’s childhood family life was so traumatic that one has been too scarred to find the prospect of a starting a family of one’s own attractive. Natural law theory does not entail that one must, all the same, press on with marriage to the first willing partner one can get hold of!
Much more could be said about this issue, but my essay was not intended as a complete account of natural law in any case, much less a complete treatment of the ethics of marriage and family. I was merely providing a sketch of the background ideas relevant to the specific topic of private property. (I say more about natural law theory in general in chapter 5 of Aquinasand about property rights in particular in my 2010 Social Philosophy and Policy article “Classical Natural Law Theory, Property Rights, and Taxation.”)
Reply to Prof. Van der Vossen
Prof. Van der Vossen gives the impression that my account of the original appropriation or initial acquisition of property is grounded in a Lockean labor-mixing theory. But that is not the case. Indeed, I thought I had made it clear in my essay that it is not -- that original appropriation involves first occupation rather than labor-mixing. To be sure, I allowed that labor-mixing plays a secondary role -- in strengtheningthe presumptive right to a previously unowned resource that is secured by first occupation -- but it is first occupation that is primary. (I have discussed the objections to labor-mixing theories myself in, among other places, my 2005 Social Philosophy and Policy article “There Is No Such Thing as an Unjust Initial Acquisition.” As I argue there, these objections are not as decisive as they are sometimes thought to be, though I would now qualify what I wrote there -- when I was still a libertarian -- in light of what I say in the 2010 Social Philosophy and Policy article. Cf. also the discussion of private property in my book Locke.)
Still, there is less disagreement between Van der Vossen and myself than the reader of our articles might initially suppose. Van der Vossen holds that in a sound defense of private property, the right way to proceed would be first to argue for the general institution of property, and thento develop a theory of how the initial appropriation of previously unowned resources should proceed -- rather than making a theory of appropriation primary and grounding the general institution of private property in it. Though he is unsure, he implies that this is my own procedure, and he is correct. In my own essay (and in my 2010 Social Philosophy and Policy article) I first argue on natural law grounds for the moral necessity of private property as a general institution, and then address the issue of initial appropriation.
Unfortunately, though he rightly suspects that this is my view, he fails to take account of the fact when he criticizes what I say about appropriation. In particular, he seems to think that I am attributing to acts of initial appropriation (whether understood in terms of first occupation or labor-mixing) a moral power all by themselves to generate a right to property. But that is not what I claimed. Acts of appropriation -- specifically, acts of first occupation -- generate property rights in specific resources only given the general background defense of property as an institution that (I agree with Van der Vossen) must be set out before the question of appropriation is addressed. I do not claim that such acts have what Van der Vossen calls a “morally magical property” of being able to generate property rights all on their own, free of a larger moral context.
So, once our respective positions are clarified, my own views on the issue at hand may not be as far from those of Prof. Bruce and Prof. Van der Vossen as it might at first appear. In any event, I thank them for their useful remarks on my essay.
