Section — Vermeersch, Questions on Justice
§ 1. Notions and Opinions
195. Sketch of the right itself. 1. A complete definition of the right, as the fruit of the whole argumentation, will have to be gathered near the end of this chapter. For the present, we undertake to explain the ordinary account of the right itself, so that we may recognize, at least by its principal notes, the right concerning which the thesis is proposed.
Come then, it is readily evident that this account consists especially in four things:
a) Some dominion over a thing inferior to us, by which we order its utility to our good;
b) The right of taking this utility;
c) A right that is not transitory but stable and permanent, which is preserved by the mere intention of the owner even after he has ceased physically to apprehend the thing;
d) The right of excluding others from the same use.
For in the first stage of reason, knowing that some thing is apt to serve me, I determine to use it and do use it. Thus far, a mere fact is at issue. But the thing becomes a matter of right as soon as other men must observe and respect this use of mine. Yet we have not yet arrived at the right of property. For, to illustrate this with examples, it would be unlawful for me to prevent others from enjoying the sun or water; I have the right to walk through roads and squares, yet no one will ascribe to me the property of the sun, water, a road, or a square.1 For what reason? Because an equally inviolable faculty over the same things and for the same use of them belongs to others. But if the utility is such that it cannot benefit several persons without diminution, so that as much as was conceded to the advantage of others would be subtracted from my own, the right of use entails the right of excluding others from the same utility; and those who must respect my faculty of using are by that very fact prohibited from seeking a similar utility for themselves from the same thing. The right then amounts to a privilege designated by the name of property, if it entails a stable subjection or assignment of the thing to one person rather than to others. Cf. what was said at the beginning, nos. 5 and 7.
1 Only by using a broader acceptation could Molina, disp. 18, Cardinal de Lugo, disp. 6, sect. 1, and others dispute concerning the dominion that would belong to man over the heavenly bodies.
2. Furthermore, this privilege can be exercised regarding any fruits and any utility or aptitude of a thing that cannot actually be destined for many persons. Hence any right of receiving, to the exclusion of others, some utility of a thing is in reality a right of property.
Yet just as we can consider a tree, field, or estate formally insofar as they bear fruits and are sources of utilities, so, in addition to the right (an “exclusive” right or privilege) to the fruits or utility, we conceive a right to the tree, field, or estate itself, whereby, as though in their root and source, we possess every utility and the fruits, whether present or future. But a right that merely affects the fruits or utility is conceived as negating that radical possession of the fruitful thing. Hence, with respect to the thing itself that is useful or fruitful, there is now distinguished:
a) Perfect or full dominion over the thing itself, by which someone can make his own every utility and all the fruits of the thing, and also dispose of the thing itself as its nature permits: destroy or consume it, if it is movable; or, if it is immovable, adapt it to this or that kind of produce or utility: plant the land with trees, sow seed in it, build upon it, etc.
b) Useful dominion, which confers a right (wholly or in part) either to the use, or to the fruits, or to both, the substance of the thing nevertheless being preserved. Therefore, it is imperfect with respect to the thing itself. Here, moreover, substance is taken juridically for that form and configuration by which the thing has a determinate utility and designation, by which, for example, it is a meadow rather than a vineyard. The best-known species of useful dominion are usufruct, use, habitation, and an active servitude.
c) Naked or radical dominion over the thing itself, the fruits or use of which belong to another. Hence the real rights in which useful dominion consists are now understood as parts torn away from perfect dominion.
3. From what has been said, it is also apparent that things, as they are now considered by us, are either outside commerce and incapable of becoming anyone's property; or ownerless and not yet in the patrimony of anyone; or, finally, the property of some person.
4. Again, the subject that positively possesses things can be the community of men itself, a public society, or some private man.
196. Object of the discussion. Since there is now no one who embraces the position of negative communism, whose excessive foolishness is detected at first sight, and since it is also readily agreed that things can at least be actually consumed by private persons, what must be discussed here chiefly is the stable private dominion of things that have perpetual utility, and especially the possession of immovable things. The difficulty, moreover, arises from the third and fourth notes by which property is distinguished, namely the perpetual right of excluding other men, for whom nevertheless the things seemed equally destined by the Creator of the world. Now, concerning the right thus understood, it is asked:
Whether things, even immovable ones, can or cannot be acquired by private persons with a stable right of dominion;
From what source the division of possessions among private persons flowed.
197. Opinions. 1. Among the ancients there seems to have been no dispute concerning the private possession of things itself, except that some thought a certain community of goods, or an equal distribution among citizens, more consonant with the account of a perfect city that they fashioned merely in thought.
2. The true detractors of proprietary dominion were heretics: both those whom, from the earliest times of the Church, the Fathers knew and refuted under the name of the Apostolics, and others who prepared the way for the innovators of the sixteenth century. Such were Wycliffe, Huss, and the Anabaptists.
What the Holy Fathers themselves thought we shall give in a scholium.
3. The Scholastic Doctors unanimously assert that the condition of the human race is now such that, after men multiplied, a stable division of goods among them was supremely expedient, indeed necessary, for peace and common prosperity.
“That man possess his own things ... is necessary for human life.” St. Thomas, II-II, q. 66, art. 2.
Community of goods would be “contrary to peaceful intercourse ... and to necessary sustenance.” John Duns Scotus, In IV Sententiarum [On Book IV of the Sentences], dist. 15, q. 2, no. 5.
After the fall and the multiplication of men, the division of things is so necessary that without it “the condition of men could scarcely be preserved.” Molina, De iustitia [On Justice], tract. 2, disp. 20, no. 5.
The division of things is proved to be “adapted to this state and condition of men” and to pertain to those institutions that were introduced “with necessity demanding them more than the will.” Suarez, De legibus [On Laws], bk. 2, chap. 14, no. 13, and chap. 19, no. 2.
“Without this [division of fields], it would be most difficult for cities to be rightly governed.” Vasquez, In I-II [On the First Part of the Second Part], disp. 157, no. 17.
“If possessions had remained common, they would have been left uncultivated.... The world would burn with perpetual contentions and wars.” Lessius, De iustitia et iure [On Justice and Right], chap. 5, no. 3.
“First of all, it is certain as a fact ... that many things are under the dominion of particular persons. It is likewise certain that this is not only lawful but also expedient, indeed necessary, for human political life.” Cardinal de Lugo, disp. 6, sect. 1.
Therefore, regarding what is principal in this matter, they agree on the lawfulness of this institution, which they hold to be divinely revealed,2 and on its perpetuity. Nor do they doubt that, after the division of things has been made, thefts are prohibited by the natural and divine law itself. Thus, for example, Suarez, loc. cit., chap. 14, no. 17; Vasquez, loc. cit., no. 22.
2 Lessius, loc. cit., no. 2; Rebellus, loc. cit., no. 20.
But when they inquire into the cause that proximately introduced the division of goods itself, by common agreement, which they judge to be confirmed by canon law, they place this division among the institutions of the law of nations.
Not a few expressly deny that it can be ascribed to divine or natural law. Thus John Duns Scotus, who nevertheless judges this concerning natural law to be merely probable. He is moved by this rationale: the law of nature, which for the state of innocence had rather commanded community, indeed granted, after the fall of Adam, permission “to appropriate and distinguish common things,” but could not itself have introduced a regime contrary to the original one. Therefore, the human decree of him who either governed his family by virtue of paternity or commanded even outsiders by political authority had to intervene. Cf. loc. cit. and also the Reportata Parisiensia [Parisian Report], on the same distinction, q. 4, nos. 7-12, where he professes the same doctrine.
Molina does not wish to attribute to natural law anything except what always and everywhere appears to reason to be morally necessary, while the necessity of private possessions obtains only for the most part and after the increase of the multitude. Therefore, although the natural law can oblige the ruler of society to make a division of things, that division nevertheless could not in fact exist “without a tacit or express human statute, even after sin.” Like Scotus, he ascribes an efficacy sufficient for this to paternal or political power, and also to the common consent of men. Cf. loc. cit., disp. 18 and 20.
Suarez appears to argue from the fact that “the congruences which show that the division of things is more advantageous in fallen nature do not prove that this division is under a natural precept”; and because nature “conferred the dominion of all things in common and consequently gave to each person the power of using them, but did not confer proprietary dominions in this manner.” Loc. cit., chap. 14, nos. 13 and 16.
Lessius grants that this regime, once its necessity is perceived, can in this respect be said to be of natural law; he nevertheless denies a strict necessity, since individual commonwealths could imitate the city of the Moravian heretics. Loc. cit., no. 10.
Yet for this reason they are not to be counted among those whom we oppose in this thesis; rather, according to their various understandings of the law of nations, they are to be judged to differ either not at all or only slightly from the opinion received today. Cf. in the preceding volume the thesis on the law of nations, and below, no. 207.
Therefore Vasquez is not opposed to us, while we judge John Duns Scotus, most Thomists, Molina, Rebellus, Suarez, and Lessius to be somewhat opposed.
Cardinal de Lugo, however, expressly sets forth the doctrine that is accepted by Catholics today: “The division of things and dominions, speaking generally, is of the law of nature, because natural reason dictates that, in the present circumstances of fallen nature and the multitude of men, division is necessary.” He takes the law of nature “for a law obliging independently of every superadded positive precept.”
He judges that the law of nations, to which others refer the division of things, is not distinct from this law. Moreover, this original community is explained by him thus: nature “introduced men into the world as though into a house filled with resources, so that each might take, and by taking make his own, those things that previously were common to all.” Cf. disp. 6, nos. 5, 6.
But what is to be said of St. Thomas? He attributes the division of possessions to the law of nations. Yet he describes this law by notes that accord entirely with our thesis; for, according to his opinion, institutions of the law of nations: a) have force also from the natural law,3 and b) “do not require any special institution, but natural reason itself institutes them.”4
N.B. Not a few distinguish with sufficient subtlety between the division of other things, which they attribute to the law of nations, and the occupation of a movable thing the possession of which is an inconvenience to no one; this they say proceeded from the natural law. Lessius, loc. cit., no. 10, teaches this expressly; Scotus, before him, no. 6, doubted the matter; and in the Decretum Gratiani [Decree of Gratian], dist. 1, chap. 7 (from Isidore), these three things are referred together to natural law: “the common possession of all and one liberty for all, the acquisition of those things which are taken from the sky, the land, and the sea; likewise, the restitution of a thing deposited or of money entrusted (loaned).”
4. Nor do we think that Hugo Grotius, when he ascribes private possessions to some compact of the human race, requires anything other than that consent which most Scholastics demanded in order that this salutary regime be introduced in fact. For he is content even with a tacit compact; and elsewhere he thus distinguishes between the dominions of those who possess reason and those of infants or the insane: the former proceed from natural law, the latter from the law of nations. Cf. De iure belli et pacis [On the Law of War and Peace], bk. 2, chap. 2, § 2, and chap. 3, § 6; cf. also what Rev. Frs. Holaind, op. cit., chap. 3, pp. 59, 65, and Capart, pp. 64-68, write concerning his opinion.
5. An error concerning the origin of civil society persuaded certain philosophers of the eighteenth century, such as Hobbes and J. J. Rousseau, to ascribe to public power such an “absolutism” as would confer upon it every right over goods. Therefore, the rights of private persons would not subsist without the authority of the civil power. And those philosophers, perhaps the first of all,5 truly disagree with us. The Kantian school, for which civil law is the source of every right and consequently also of property, is no less opposed to us.
5 “Hobbes is, we think, the first who expressly formulated and defended this opinion (that property comes from civil law).” Capart, op. cit., p. 36.
6. In this century, the opinion of Cardinal de Lugo has become common among Catholics. The Supreme Pontiff Leo XIII himself has more than once pronounced judgment on the matter in words that leave no room for doubt: “The Church recognizes as far more fitting and useful inequality among men, who are naturally diverse in bodily and intellectual powers, even in the possession of goods; and she commands that the right of property and dominion, proceeding from nature itself, remain intact and inviolable for each person.”6 And more recently, in the Encyclical Rerum Novarum:7 “To possess things privately as one's own is a right given to man by nature.” He then shows that this applies not only to those things which are consumed by use, but also to those “which remain while we use them,” and to the dominion of the land itself.
6 Encyclical Quod Apostolici, December 28, 1878, toward the end.
7 Near the beginning. In the middle, moreover, he again has these other words: “To possess goods privately, which we saw a little above, is a natural right of man.”
7. In what respect the socialists, both pure and mixed, are hostile to this doctrine of ours is far too evident from the preceding chapter for it to be necessary to inculcate it here again.