CHAPTER X—THE RIGHT OF PROPERTY
§ 1. The moral law, being the law of the social state,
is obliged wholly to ignore the ante-social state. Constituting, as the
principles of
pure morality
do, a code of conduct for the perfect man, they cannot be made to adapt
themselves to the actions of the uncivilized man, even under the most ingenious
hypothetical
conditions-cannot be made even to recognize those actions so as to pass
any definite sentence upon them. Overlooking this fact, thinkers, in their
attempts
to prove some of the first theorems of ethics, have commonly fallen into
the error of referring back to an imaginary state of savage wildness, instead
of
referring forward to an ideal civilization, as they should have done; and
have, in consequence, entangled themselves in difficulties arising out of
the discordance
between ethical principles and the assumed premises. To this circumstance
is attributable that vagueness by which the arguments used to establish the
right
of property in a logical manner are characterized. While possessed of a
certain Plausibility, they yet cannot be considered conclusive, inasmuch
as they suggest
questions and objections that admit of no satisfactory answers. Let us
take a sample of these arguments and examine its defects.
"Though the earth and all inferior creatures," says Locke, "be
common to all men, yet every man has a property in his own person: this nobody
has a right to but himself. The labor of his body, and the work of his hands,
we may say are properly his. Whatever, then, he removes out of the state
that nature hath provided and left it in, he hath mixed his labor with, and
joined
to it something that is his own, and thereby makes it his property. It being
by him removed from the common state nature hath placed it in, it hath by
this labor something annexed to it that excludes the common right of other
men.
For this labor being the unquestionable property of the laborer, no man but
he can have a right to what that is once joined to, at least when there is
enough and as good left in common for others."
If inclined to cavil, one might in reply to this observe
that as, according to the premises, "the earth and all inferior creatures" — all
things, in fact, that the earth produces — are "common to all
men," the
consent of all men must be obtained before any article can be equitably "removed
from the common state nature hath placed it in." It might be argued
that the real question is overlooked, when it is said that, by gathering
any natural
product, a man "hath mixed his labor with it, and joined to it something
that is his own, and thereby made it his property"; for that the point
to be debated is whether he had any right to gather, or mix his labor with
that which, by the hypothesis, previously belonged to mankind at large. The
reasoning used in the last chapter to prove that no amount of labor, bestowed
by an individual upon a part of the earth's surface, can nullify the title
of society to that part might be similarly employed to show that no one can,
by the mere act of appropriating to himself any wild unclaimed animal or
fruit, supersede the joint claims of other men to it. It may be quite true
that the
labor a man expends in catching or gathering gives him a better right to
the thing caught or gathered than any one other man; but the question at
issue
is whether by labor so expended he has made his right to the thing caught
or gathered greater than the pre-existing rights of all other men put together.
And unless he can prove that he has done this, his title to possession cannot
be admitted as a matter of right, but can be conceded only on the ground
of
convenience.
Further difficulties are suggested by the qualification
that the claim to any article of property thus obtained is valid only "when there is enough
and as good left in common for others." A condition like this gives birth
to such a host of queries, doubts, and limitations as practically to neutralize
the general proposition entirely. It may be asked, for example: How is it to
be known that enough is "left in common for others"? Who can determine
whether what remains is "as good" as what is taken? How if the remnant
is less accessible? If there is not enough "left in common for others," how
must the right of appropriation be exercised? Why, in such case, does the mixing
of labor with the acquired object cease to "exclude the common right of
other men"? Supposing enough to be attainable, but not all equally good,
by what rule must each man choose? Out of which inquisition it seems impossible
to liberate the alleged right, without such mutilations as to render it,
in an ethical point of view, entirely valueless.
Thus, as already hinted, we find that the circumstances of savage life render
the principles of abstract morality inapplicable; for it is impossible, under
ante-social conditions, to determine the rightness or wrongness of certain
actions by an exact measurement of the amount of freedom assumed by the parties
concerned. We must not expect, therefore, that the right of property can be
satisfactorily based upon the premises afforded by such a state of existence.
§ 2. But under the system of land tenure pointed out
in the last chapter as the only one that is consistent with the equal claims
of all men to the
use of the earth, these difficulties disappear, and the right of property
obtains a legitimate foundation. We have seen that, without any infraction
of the law
of equal freedom, an individual may lease from society a given surface of
soil, by agreeing to pay in return a stated amount of the produce he obtains
from
that soil. We found that, in doing this, he does no more than what every
other man is equally free with himself to do; that each has the same power
with himself
to become the tenant; and that the rent he pays accrues alike to all. Having
thus hired a tract of land from his fellow men, for a given period, for understood
purposes, and on specified terms — having thus obtained, for a time,
the exclusive use of that land by a definite agreement with its owners, it
is manifest
that an individual may, without any infringement of the rights of others,
appropriate to himself that portion of produce which remains after he has
paid to mankind
the promised rent. He has now, to use Locke's expression, "mixed his
labor with" certain products of the earth; and his claim to them is
in this case valid, because he obtained the consent of society before so
expending
his labor; and having fulfilled the condition which society imposed in giving
that consent — the payment of rent – society, to fulfill its
part of the agreement, must acknowledge his title to that surplus which remains
after
the rent has been paid. "Provided you deliver to us a stated share of
the produce which by cultivation you can obtain from this piece of land,
we give you the exclusive use of the remainder of that produce": these
are the words of the contract; and in virtue of this contract, the tenant
may equitably
claim the supplementary share as his private property; may so claim it without
any disobedience to the law of equal freedom; and has therefore a right so
to claim it.
Any doubt that may be felt as to the fact that this is
a logical deduction from our first principle, that every man has freedom
to do all that he
wills, provided he infringes not the equal freedom of any other man, may
be readily
cleared up by comparing the respective degrees of freedom assumed in such
a case by the occupier and the members of society with whom he bargains.
As was
shown in the preceding chapter, if the public altogether deprive any individual
of the use of the earth, they allow him less liberty than they
themselves claim; and by so breaking the law of equal freedom commit a
wrong. If, conversely,
an individual usurps a given portion of the earth, to which, as we have
seen,
all other men have as good a title as himself, he breaks the law by assuming
more liberty than the rest. But when an individual holds land
as a tenant of society, a balance is maintained between these extremes,
and the claims
of
both parties are respected. A price is paid by the one for a certain privilege
granted by the other. By the fact of the agreement being made, it is shown
that such price and privilege are considered. to be equivalents. The lessor
and the lessee have both, within the prescribed limits, done that which
they willed: the one in letting a certain holding for a specified sum, the
other
in agreeing to give that sum. And so long as this contract remains intact,
the law of equal freedom is duly observed. If, however, any of the prescribed
conditions be not fulfilled, the law is necessarily broken, and the parties
are involved in one of the predicaments above named. If the tenant refuses
to pay the rent, then he tacitly lays claim to the exclusive use and benefit
of the land he occupies — practically asserts that he is the sole
owner of its produce, and consequently violates the law by assuming a greater
share of freedom than the rest of mankind. If, on the other hand, society
take from
the tenant that portion of the fruits obtained by the culture of his farm,
which remains with him after the payment of rent, they virtually deny him
the use of the earth entirely (for by the use of the earth we mean the
use of its
products), and in so doing claim for themselves a greater share of liberty
than they allow him. Clearly, therefore, this surplus produce equitably
remains with the tenant; society cannot take it without trespassing upon
his freedom;
he can take it without trespassing on the freedom of society. And as, according
to the law, he is free to do all that he wills, provided he infringes not
the equal freedom of any other, he is free to take possession of such surplus
as
his property.
§ 3. The doctrine that all men have equal rights to
the use of the earth does indeed, at first sight, seem to countenance a
species of social
organization
at variance with that from which the right of property has just been deduced;
an organization, namely, in which the public, instead of letting out the
land to individual members of their body, shall retain it in their own hands,
cultivate
it by joint-stock agency, and share the produce: in fact, what is usually
termed Socialism or Communism.
Plausible though it may be, such a scheme is not capable of realization in
strict conformity with the moral law. Of the two forms under which it may be
presented, the one is ethically imperfect; and the other, although correct
in theory, is impracticable.
Thus, if an equal portion of the earth's produce is awarded
to every man, irrespective of the amount or quality of the labor he has
contributed toward
the obtainment of that produce, a breach of equity is committed. Our first
principle requires, not that all shall have like shares of the things which
minister to the gratification of the faculties, but that all shall have like
freedom to pursue those things — shall have like scope. It is one thing
to give to each an opportunity of acquiring the objects he desires; it is
another, and quite a different thing, to give the objects themselves, no
matter whether
due endeavor has or has not been made to obtain them. The one we have seen
to be the primary law of the Divine scheme; the other, by interfering with
the ordained connection between desire and gratification, shows its disagreement
with that scheme. Nay, more, it necessitates an absolute violation of the
principle of equal freedom. For when we assert the entire liberty of each,
bounded only
by the like liberty of all, we assert that each is free to do whatever his
desires dictate, within the prescribed limits – that each is free, therefore,
to claim for himself all those gratifications and sources of gratification
attainable by him within those limits – all those gratifications and
sources of gratification which he can procure without trespassing upon the
spheres
of action of his neighbors. If, therefore, out of many starting with like
fields of activity, one obtains by his greater strength, greater ingenuity,
or greater
application more gratifications and sources of gratification than the rest,
and does this without in any way trenching upon the equal freedom of the
rest, the moral law assigns him an exclusive right to all those extra gratifications
and sources of gratification; nor can the rest take from him without claiming
for themselves greater liberty of action than he claims, and thereby violating
that law. Whence it follows that an equal apportionment of the fruits of
the
earth among all is not consistent with pure justice.
If, on the other hand, each is to have allotted to him a share of produce
proportionate to the degree in which he has aided production, the proposal,
while it is abstractedly just, is no longer practicable. Were all men cultivators
of the soil, it would perhaps be possible to form an approximate estimate of
their several claims. But to ascertain the respective amounts of help given
by different kinds of mental and bodily laborers toward procuring the general
stock of the necessaries of life is an utter impossibility. We have no means
of making such a division save that afforded by the law of supply and demand,
and this means the hypothesis excludes.1
1. These inferences do not at all militate against joint-stock
systems of production and living, which are in all probability what Socialism
prophesizes.
§ 4. An argument fatal to the communist theory is
suggested by the fact that a desire for property is one of the elements
of our nature. Repeated allusion
has been made to the admitted truth, that acquisitiveness is an unreasoning
impulse quite distinct from the desires whose gratifications property secures — an
impulse that is often obeyed at the expense of those desires. And if a propensity
to personal acquisition be really a component of man's constitution, then
that cannot be a right form of society which affords it no scope. Socialists
do
indeed allege that private appropriation is an abuse of this propensity,
whose normal function, they say, is to impel us to accumulate for the benefit
of
the public at large. But in thus attempting to escape from one difficulty,
they do but entangle themselves in another. Such an explanation overlooks
the fact that the use and abuse of a faculty (whatever the etymology of the
words
may imply) differ only in degree; whereas their assumption is that they differ
in kind. Gluttony is an abuse of the desire for food; timidity, an abuse
of the feeling which in moderation produces prudence; servility, an abuse
of the
sentiment that generates respect; obstinacy, of that from which firmness
springs: in all of which cases we find that the legitimate manifestations
differ from
the illegitimate ones merely in quantity and not in quality. So also with
the instinct of accumulation. It may be quite true that its dictates have
been
and still are followed to an absurd excess, but it is also true that no change
in the state of society will alter its nature and its office. To whatever
extent moderated, it must still be a desire for personal acquisition. Whence
it follows
that a system affording opportunity for its exercise must ever be retained;
which means that the system of private property must be retained, and this
presupposes a right of private property, for by right we mean that which
harmonizes with the human constitution as divinely ordained.
§ 5. There is, however, a still more awkward dilemma
into which M. Proudhon and his party betray themselves. For if, as they
assert, "all property
is robbery" — if no one can equitably become the exclusive possessor
of any article, or, as we say, obtain a right to it — then, among other
consequences, it follows that a man can have no right to the things he consumes
for food. And if these are not his before eating them, how can they become
his at all? As Locke asks, "When do they begin to be his? When he digests?
Or when he eats? Or when he boils? Or when he brings them home?" If
no previous acts can make them his property, neither can any process of assimilation
do it; not even their absorption into the tissues. Wherefore, pursuing the
idea, we arrive at the curious conclusion that as the whole of his bones,
muscles,
skin, etc., have been thus built up from nutriment not belonging to him,
a man has no property in his own flesh and blood, can have no valid title
to
himself, has no more claim to his own limbs than he has to the limbs of another,
and has as good a right to his neighbor's body as to his own! Did we exist
after the same fashion as those compound polyps, in which a number of individuals
are based upon a living trunk common to them all, such a theory would be
rational enough. But until Communism can be carried to that extent, it will
he best
to stand by the old doctrine.
§ 6. Further argument appears to be unnecessary. We
have seen that the right of property is deducible from the law of freedom,
that it is presupposed
by the human constitution, and that its denial involves absurdities.
Were it not that we shall frequently have to refer to the
fact hereafter, it would be scarcely needful to show that the taking away
another's property
is an infringement of the law of equal freedom and is therefore wrong. If
A appropriates to himself something belonging to B, one of two things must
take
place: either B does the like to A, or he does not. If A has no property,
or if his property is inaccessible to B, B has evidently no opportunity
of exercising
equal freedom with A by claiming from him something of like value, and A
has therefore assumed a greater share of freedom than he allows B and has
broken
the law. If, again, A's property is open to B, and A permits B to use like
freedom with himself by taking an equivalent, there is no violation of the
law, and the affair practically becomes one of barter. But such a transaction
will never take place save in theory, for A has no motive to appropriate
B's property with the intention of letting B take an equivalent; seeing
that if
he really means to let B have what B thinks an equivalent, he will prefer
to make the exchange by consent in the ordinary way. The
only case simulating this is one in which A takes from B a thing that B
does not wish to part with — that is, a thing for which A can give
B nothing that B thinks an equivalent — and as the amount of gratification
which B has in the possession of this thing is the measure of its value to
him, it follows that if A cannot give B a thing which affords B equal gratification,
or in other words what he thinks an equivalent, then A has taken from B what
affords A satisfaction, but does not return to B what affords B satisfaction,
and has therefore broken the law by assuming the greater share of freedom.
Wherefore we find it to be a logical deduction from the law of equal freedom
that no man can rightfully take property from another against his will.
There is in this, it will be observed, no modification whatever of the strenuous
assertion in Chapter IX of the equal, natural and inalienable right of all
men to the use of land. On the contrary, so strongly, so uncompromisingly,
does Mr. Spencer insist on the ethical invalidity of private property in land
that he makes the formal consent of the community and the payment of rent to
it a condition precedent to the individual right of property in things produced
by labor. And, since no formal consent of this kind can be given until society
has been well organized, he even goes to the length of denying that there can
be any full right of property, or, indeed, any application of the principles
of abstract morality, in any social condition lower than the civilized.