{"id":5779,"date":"2010-03-15T06:34:22","date_gmt":"2010-03-15T06:34:22","guid":{"rendered":"http:\/\/blog.beliefnet.com\/jesuscreed\/2010\/03\/law-at-the-jesus-creed-david-o-10.html"},"modified":"2010-03-15T06:34:22","modified_gmt":"2010-03-15T06:34:22","slug":"law-at-the-jesus-creed-david-o-10","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/jesuscreed\/2010\/03\/law-at-the-jesus-creed-david-o-10.html","title":{"rendered":"Law at the Jesus Creed: David Opderbeck"},"content":{"rendered":"

\"Lawbook.jpg\"<\/a><\/span>We 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.<\/i><\/p>\n

<\/div>\n
\n

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<\/a>.  <\/span>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.  <\/span>He suggests that the right to private property is a “fundamental” right.<\/p>\n

What do you think about this proposed distinction between “absolute” and “fundamental” rights?  <\/span>From the perspective of Christian theology, is private property a “fundamental” right?<\/b><\/p>\n

Before I offer some additional thoughts, I should note one element of my earlier post that Richards picked up on:  <\/span>my use of the term “third way.”  <\/span>Richards correctly notes that this term historically has been used by socialists to describe their economic views.  <\/span>My intent, however, was not to make an oblique reference to socialism.  <\/span>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.  <\/span>That is the sense I intended.<\/p>\n<\/div>\n


\n<\/p>\n

I am not a
\nsocialist, though I appreciate some of the communitarian political theology of
\nthinkers such as John Milbank and Jurgen Moltmann; and while I appreciate some
\naspects of liberation theology, I also am not a liberationist.  <\/span>What I hope I’m driving at is more of a
\nrecovery of aspects of the Christian tradition concerning law and economics
\nthat, in my judgment, have often been ignored by conservative evangelicals in
\nNorth America.<\/p>\n

With that out of the way, let me pull out and examine one of
\nthe philosophical tools often employed by folks who argue that private property
\nis a “fundamental” right: 
\n<\/span>John Locke’s labor theory. 
\n<\/span>Locke argued that, without the efforts of human beings, the creation
\nexists in a “state of nature.” 
\n<\/span>No one has a right to possess nature in itself.  <\/span>However, when a person mixes his labor
\nwith the state of nature to produce something — for example, when a farmer
\ncauses the land to yield crops — that person has a natural right to possess
\nthe fruits of his labor.  <\/span><\/p>\n

This is because, according to Locke,  <\/span>a person “owns” his own body,
\nand therefore owns what his body does.   <\/span>Locke summarizes this as follows in his Second Treatise on Government<\/i>:   <\/span>“As much land as a man
\ntills, plants, improves, cultivates, and can use  <\/span>the product of, so much is his property. He by his labor
\ndoes, as it were, enclose it from the common.”  <\/span>Absent such a right, Locke further argued, people would have
\nlittle incentive to exert their labors. 
\n<\/span>Locke’s natural law property theory deeply influenced Anglo-American
\njurisprudence prior to the rise of “legal realism” in the nineteenth
\ncentury and even thereafter.<\/p>\n

Locke, however, recognized that this natural law property
\nright must have limits.  <\/span>These
\ninclude the “enough and as good” and “waste” provisos.  <\/span>In brief (and ignoring a number of
\nfissiparous disputes among Locke scholars about the nature of these
\nprovisos):  <\/span>“enough and as
\ngood” means that an individual may appropriate from nature only such an
\namount of resources that enough and as good of those resources are left for
\nothers; and the related “waste” 
\n<\/span>condition means that an individual may appropriate from nature only so
\nmuch as he can use, such that there is no remainder to spoil and go to waste.<\/p>\n

Locke’s theory of property is in many ways appealing.  <\/span>It is a “Christian” theory of
\nproperty, or at least a theistic one, which recognizes that
\n“property” has a moral dimension rooted in nature as God’s
\ncreation.  <\/span>And it includes
\nimportant conditions that help protect the general public good.  <\/span>I think it falls short as a deeply
\nChristian theory, however, for at least two reasons.<\/p>\n

First, it idealizes the individual within the “state of
\nnature” in ways that seem more indebted to the Enlightenment than to the
\nHebrew and Christian scriptures. 
\n<\/span>The “cultural mandate” in Genesis 1:28 is not an invitation to
\nautonomous individuals to add labor to what God made on the first five days and
\nthen to take possession of the resulting fruits of those labors.  <\/span>The adam
\n<\/i>of Genesis 1 is generic humanity, not an individual, and the charge of
\nGenesis 1:28 is one of vice-regency and sub-creation, not one of individual
\nprivate ownership.  <\/span> <\/span>Vice-regency and sub-creation may entail
\nsome individual private ownership for pragmatic reasons of organization and
\nefficiency (and indeed, I think this is the case), but Lockean labor theory, I
\nthink, improperly prioritizes individual private ownership as a
\n“fundamental right.”<\/p>\n

Second, Locke’s theory seems to distance God from the
\ncreated order, in common Enlightenment fashion.  <\/span>It is as though God wound up the “state of nature”
\nand then stepped out of the picture. 
\n<\/span>The Hebraic concept of Divine immanence in and sovereignty over creation
\nis much more robust than Locke’s state of nature.  <\/span>We see this, I think, in God’s charge to Israel before the
\nconquest of Canaan:  <\/span><\/p>\n

When the LORD your God brings you
\ninto the land he swore to your fathers, to Abraham, Isaac and Jacob, to give
\nyou–a land with large, flourishing cities you did not build, houses filled with
\nall kinds of good things you did not provide, wells you did not dig, and
\nvineyards and olive groves you did not plant–then when you eat and are
\nsatisfied,  <\/span>be careful that you do
\nnot forget the LORD, who brought you out of Egypt, out of the land of slavery <\/span>(Deut. 6:10-12).<\/p>\n

This seems to represent the opposite of Locke’s labor
\ntheory.  <\/span>The property theory
\nunderlying the Old Testament law is bound up with God’s redemptive covenant,
\nnot with individual fundamental rights of ownership resulting from the exercise
\nof labor. <\/p>\n

The property theory reflected in the Old Testament law, of
\ncourse, is problematic for us today because it also is inextricably tied to herem<\/i> warfare.  <\/span>No Christian theory of property should claim a right of
\nconquest based on covenant prerogatives — although unfortunately such views
\nhave at times been a theme in Christian history (one example is Augustine’s advice concerning the
\nDonatists<\/a>).  <\/span>So here we must
\nrefer also to the ways in which the Old Testament notions of the covenant
\ncommunity are taken up and transformed in the New Testament, and particularly
\nby Jesus in the Sermon on the Mount. 
\n<\/span>But that is a subject for another day.<\/p>\n

Is Locke’s labor
\ntheory an adequately Christian theory of property?  <\/span>Are there Christian theories of property that extend beyond
\nthe modern categories of “capitalist,” “socialist,” and “communist?”<\/b><\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

We 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. 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