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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