The Properties of Property
If you read libertarians, classical liberals, and their intellectual godfather John Locke, you might believe that they are the great defenders of property rights. After all Locke and his followers have always championed the rights of life, liberty, and property. How strange it is, then, that so many (not all certainly) modern libertarians have also argued for a mother's right to kill her baby and the right of the Federal Government to take away liberty from local communities that have passed ordinances that one or another moral anarchist dislikes. But, since the liberals/ libertarians adore money, surely they are a bastion of support for property rights against Marxists and other would-be confiscators.
In their own minds, this is certainly the case, but if we take a very brief look at the way property has been conceived throughout history, we shall soon discover that the liberal/libertarian view of property as an individual right is at the root of the erosion of both our civil property rights and of the deeper understanding of property that characterized the civilizations that came before us.
Property is a difficult political onion to peel, more complicated even than marriage, and I shall have to oversimplify a great many complex historical issues. I invited (but did not receive) questions on the history of marriage, but perhaps this more difficult set of institutions will be more provocative.
First off, there is the unfortunate word property itself. It it is an abstract noun formed from the adjective "proprius," own's own. Thus property is whatever one owns, whether it is personal property, such as a hairbrush or a sword or real property, such as a house or land. Marxists and other egalitarian theorists--including some Christian theologians--have argued that property is not natural to man either because it was invented (according to Engels) by the same patriarchal males who usurped power and created the state, or because in a natural or Edenic state man owned nothing.
Since the book of Genesis is a rather brief sketch on which to base so broad and fundamental and argument, some thinkers have turned to the most "primitive" societies, such as the Bushmen of the Kalahari, the Pygmies, or the Eskimos as evidence for a state of natural equality. But in all such "primitive" societies--the quotation marks are a nod to the reality that all peoples have been around more or less the same time on earth and there is no proof that the crudest societies are indeed the most natural--men and men do have possessions of their own, if only a cooking pot or a throwing stick. Yes, say the egalitarians, but they do not have rights over real property, that is to say, land.
If we actually could agree that real estate is the most important form of property, we should have made some progress in distinguishing property from, for example, money or other forms of wealth. One can live quite comfortably in a small undeveloped society without money or with only a primitive system of exchange. How well can one live as an individual or in a small group without a roof over one's head or a bit of land to cultivate and defend? Naturally, in a complex international economy, where other people do all the heavy lifting to grow our wheat, raise our beef, and distribute them to the markets, we can pretend we are self-sufficient, but if we are going, at least for a few minutes, to entertain the fantasy of natural rights, we have to think of life in something closer to the state of nature than a co-op apartment in Manhattan.
In pre-modern societies, then, everyone or nearly everyone has to have some kind of real property, and in the most simple conditions, this real property with a house on it is indispensable to our existence. If we leave the theoretical world and enter a world described by anthropologists and historians,the reality becomes more complicated. In all the primitive societies about which I have read, the social group--whether a band of kinsmen or a larger tribe--has superior claims to certain hunting grounds or, especially, water holes. Thus, if there are no individual rights to real property, there are communal rights.
The rights of the community, typically of kindreds, are prior to the rights of the "individual." Again the quotation marks are to indicate a conventional term for which there is no corresponding reality, at least not in any universal sense. In the ancient world--let us speak only now of Greeks, Jews, and Romans--rights to property generally have to do with the inheritance rules that stipulate who in the family becomes temporary master of the estate, that is, the proprietor in his lifetime. Without going into the details, it is enough to say that ancestral property was not ordinarily bought or sold. There are arguments about when and under what circumstances it might be sold--for example, for debt--but the primary qualities of the most important type of real estate that more or less defined property are, 1) that it was passed down from generation according, 2) according to rules going back to time immemorial, and 3) could not be seized by a third party or the commonwealth except in the most extreme circumstances, e.g. crimes (such as treason) that caused the exile of the proprietor and his kin.
Roman property law was the most developed in the ancient world. Their word, dominium, conveyed a wealth of rights and duties. A man who had full dominium had the right to use and to bestow his property to his heirs. He could not be exappropriated for back taxes or for the greater good of the community. When the Emperor Augustus--a man of enormous power but who maintained Roman law--wished to build a large forum for genuine public needs, he had to be content with smaller dimensions when some proprietors refused to sell.
There were other kinds of ownership, for example, land acquired by conquest and leased out/sold to private citizens who held it in perpetuity and may eventually have converted their rights to dominium. Abandoned land that was taken and improved for a certain period of time might also be held by right of usucapio, which might then also be upgraded. The ideal form,however, was dominium, which could be alienated only under very limited conditions.
When the barbarians took over western Europe, much of the land was taken by Frankish or Gothic or Lombard royal thugs who granted it to followers on condition of service. Earlier generations of Medieval historians typically wrote as if such a feudal agreement was the basis for all or most property, but their conclusions were much too sweeping. In the first place, older Roman property rights persisted in the South of France, and in the second, some Germanic warriors--notably the Anglo-Saxons--seized and held land in their own right. More significantly, though kings were always trying to centralize their power over property, the counter-tendency against centralization was often stronger. Counts usurped the rights of kings, knights the rights of counts, etc.
It was only in the Renaissance when jurists combined the language of Roman law with the increasingly centralized claims of kings to produce the theory of Eminent Domain, according to which the sovereign is the ultimate ruler of everything and only grants property rights on certain conditions. Such rights can be revoked when the sovereign or his deputies decide that it is in the public interest to to strengthen fortifications or create a park. This right of eminent domain was exercised not only against the weak but against noblemen and most especially against the Church--and not just in Protestant countries.
With these developments as a backdrop, we can begin to understand the counter-claim of liberal or proto-liberal intellectuals who wished to defend the property rights of the rich merchants and large proprietors whose interests they were defending. Locke, whatever else he might have done, was a Whig propagandist.
Thus the liberal theoreticians spoke of individuals and their rights to property, which in a more mercantile age referred not so much to inheritance rights as to the right to buy and sell. But if the right to buy and sell is definitive, one should not care too much if the king or a governor decides to buy it. Naturally their will be a good deal of haggling over price and terms, but no distinction is made between property I acquired for investment purposes yesterday and property my family inherited over the generations and whose rights go back to a royal land grant that antedates the invention of the United States.
This simplistic liberal theory of property rights, then, has many obvious flaws: First, it is an historical invention of comparatively recent times whose claims to universality will not stand much scrutiny; second, it does not at all distinguish between property with which my social identify is bound and property treated as a mere commodity; third, it is part of a general theory of rights for which there is no evidence whatsoever, either in nature or reason or revelation; and, finally and perhaps most decisively, it is part of a generalized program of individualism that pits the naked and helpless individual against the almost all-powerful state. A great corporation or labor union, with its vast resources,may sometimes beat the state, the individual hardly ever, unless his cause can be fitted into some larger socialist agenda (feminist, environmentalist, etc.).
Neither liberty nor property can be successfully defended (except in exceptional circumstances) from aggressive and predatory governments and the constituents they represent. Liberalism, in eliminating the rights of classes, churches, and corporate bodies, has exposed individuals to the full force of state power against which they cannot contend. Thus any talk of property as an individual right--much less Richard Weaver's nonsense about property as "the last metaphysical right"--is subversive of authentic and historical property rights.
Libertarians will respond that local governments are corrupt and small-minded, imposing zoning restrictions that are nobody's business and preventing business development. This is undoubtedly true but irrelevant, because the libertarian solution is to invoke the might and majesty of the Federal courts, which make matters much worse. If you can't fight city hall, what makes them think they can fight the White House, Congress, and the Supreme Court? In the case of property, as in the case of marriage and of every other important institution, libertarians are a major part of the problem, and their simplistic ideas, if taken seriously (as they almost never are by anyone in power), would only make us more powerless. At one point in modern history, liberal/libertarians might have played a useful role in standing up to the power of the central state, but in inserting the poison of individual rights into our political consciousness, they did a harm that their own false theories can never ameliorate.
PS If anyone wants a further discussion of Greek, Roman, or Medieval conceptions of property, I shall supply further information.
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Dr Fleming:
Years ago, I read in a magazine a passing mention of 'Greek law and custom' pertaing to marriage, property, and inheritance. What was the Greek conception of property rights and responsibilities connected to property, and how did they differ from the Roman practice? Did Christianity alter the concept of property in the later Imperium?
" it does not at all distinguish between property with which my social identify is bound and property treated as a mere commodity; third, it is part of a general theory of rights for which there is no evidence whatsoever, either in nature or reason or revelation; and, finally and perhaps most decisively, it is part of a generalized program of individualism that pits the naked and helpless individual against the almost all-powerful state. A great corporation or labor union, with its vast resources,may sometimes beat the state, the individual hardly ever, unless his cause can be fitted into some larger socialist agenda (feminist, environmentalist, etc.)."
This is the essence of what is missing in almost all discussions of property as that word is conceived today inthe popular imagination. As a result most conversations about property include only the most misunderstood and crudest aspects of socialism and capitalism. This is true in current catholic discussions of Papal encyclicals as well as the ahistorical notion that greed and power have always been protected under the umbrella of abstract rights to property. Trickle down economic theory was described in the New Testament where certain classses were described as waiting for whatever scraps might fall from their master's table. Of course socialism was the normal reaction to such a state of affairs so in the early Church it is said that the early Christians held all things in common. Christian civilization seems to have flowered when a blend of these extreme tensions were understood and held in abeyance by a citizenry of neighbors. Wendell Berry once wrote that any farmer worth his salt -- any civilized farmer that is -- would prefer to have a neighbor than his neighbor's land. It is hard for those raised under the influence of a worldly lust gone wild to appreciate this fact but spring break is upon us and Girls (and boys) Gone Wild will soon be hitting the topless beaches to remind us.
Recently I read one of Professor Dwight D. Murphey's critiques of classical liberalism. Murphey seems to be a sympathetic to classical liberalism but sees its adherents as mistakenly trying to sell it as a closed system or a comprehensive system if you will.
Anyway, he discussed the idea of holding real property as a source of common wealth and income for everyone, the idea being that no one created the land the way someone creates many other forms of wealth. His idea also seemed to follow from his pragmatism and his belief that we will soon face the dispossession of large number of laborers (not just manual) due to both technological developments and globalization.
Have you read Prof Murphey's critique of classical liberalism?
Quite surprising to find a negative opinion of one of Richard Weaver's theories from Dr. Fleming.
Greek law is in general more flexible and less definition-based than Roman law, and we have much less evidence, even for Athenian property law. In general ancestral property was very important to a family and its kinfolk, and the preservation of the family's identity is dependent largely on inheritance. This is the one aspect of Athenian family life that drags kinfolks into court.
Ousia--being--was used to signify property owned. The evidence is not strong, but in the early period, inherited property would have been difficult if not impossible to alienate. Inheritance was stipulated by law and custom, and at Athens the estate was divided equally among the sons or, failing sons, to a daughter who was then required to marry a near male relative, though more often it would seem she paid him off. Ownership conferred broad rights, though there were restrictions: One could not cut down a sacred olive tree, sometimes mineral rights could be owned or controlled by the polis; a citizen on whom a decree of atimia, disenfranchisement was passed, lost property rights. In the economic crises of the 6th century, smaller farmers mortgaged estates and even their families. This is the background to Solon's moderate reforms, freeing enslaved Athenians and liberating their land from mortgage stones.
Athenian law distinguished between ancestral possessions (patroa) and acquired goods or property (epikteta). Probably, under most circumstances, even in the 4th Century, a man could only alienate his epikteta with ease, though Aristotle cites the right to alienate as a property right, but this may have only been exercised in the absence of a son.
It was normal, even normative for Athenian families to own property. Sir Moses Finley estimates that 3/4 of families in classical Athens owned property. Athens throughout the 5th century was a body of citizens and not a state, thus, as J.K. Davies puts it, an Athenian was more like a member of a joint stock company than a modern citizen of a megastate. Thus property was seen in the context of kinfolks and neighbors. When there were problems, they had to litigate. The state's only role was to provide the mechanisms of the trial.
In sum, Greek property law reflects a social order based on household and kinship. While personal rights are not neglected, much less unknown, that is not the primary aspect under which possessions were viewed. I suppose the relevant legal term for us would heirlooms, which are hemmed in with certain restrictions--a second wife, I believe, cannot simply assume her husband meant her to have a ring, if it was a family heirloom. That, at least, was the crux of Trollope's fine novel, The Eustace Diamonds. Think of the important objects mentioned by Homer, a sword or royal staff: each has a family history attached to it. Naturally, in later times of much greater mobility, some of this feeling wore off, but few Greeks or Romans were ever individualists in the liberal/libertarian sense.
I admire and respect Richard Weaver, but I do not think it write to treat recent writers as gurus, whether Weaver or Kirk or Rothbard. He had many fine insights, but perhaps in his anti-Communism he went to far to the other side, as was natural in the 1950's. I have an article criticizing Weaver's metaphysics of property in Chronicles and will try to have it posted in a few days. Dwight Murphey is a usually sensible man, but inventing new ideas about property, especially those that are not grounded in human nature and experience, is really not very helpful. I cannot, of course, speak specifically about his suggestions since I have not read them.
Dr. Fleming:
Over the years I have been reading your posts and articles in Chronicles, and I am impressed by your knowledge of Roman and Greek law. If one may ask, which works should the beginner student of Roman and Greek law go to an introduction to the fields ?
Dr. Fleming, if I reach into my shallow vat of inaccurate historical knowledge, I seem to remember that, subsequent to the black plague, the cities of northern Italy saw an inredible boom in what what we would call "new money." In other words, men and families who were not historically of nobility were able to gain vast wealth in the decades after the first wave of the plague. Does this apparently unprecedented economic transformation correlate at all to the erosion of the classical conception of property?
#4:
Ideas Have Consequences was one of a number of books which radically reoriented my understanding of the world, and I will always be grateful to its brilliant author. Nonetheless, Weaver was not perfect. Catholics in particular might note his treatment of Aristotle in Chapter VI, and his suggestion that the Church "turned away" from the Church Fathers in adopting Aristotlean Thomism. (A claim which errs in more ways than one; according to Josef Pieper, those who think of St. Thomas as "an Aristotlean" with some Christian veneer -- as well as those who ignore the influence of Plato on the saint's thinking -- are seriously mistaken.)
That said, I must admit that up to now I always found Weaver's chapter on property convincing. I have always found defenders of private property -- libertarians or whoever -- most sympathetic when they based their arguments on foundational moral principles, such as "mine is mine, yours is yours" and "Thou shalt not steal", rather than on harping about the inefficiencies of socialism.
I think I have an inkling of what Dr. Fleming is pointing out -- the right to private property, like all modern "rights", are fantastical fiction of Enlightenment individualism?
But my perception is still more than a little fuzzy here, and do hope that Dr. Fleming will indeed post his more elaborate essay exploring & explaining the problem with Weaver's description.
"are fantastical fiction"
should read
"is a fantastical fiction"
How, if at all, does the history of corporations intersect with this history of property? I understand the ancients had corporations of some form but that the modern form arose around the time of the Renaissance or just after with the chartered companies. Did the modern conception of property affect the development of rules for, and behavior of, corporations? In ancient Rome, could a company in say, Marseilles, move it's corporate headquarters to Naples while outsourcing some of its manufacturing to London?
The Rothbard-Rockwell-Hoppe-Ron Paul libertarians favor decentralization and allowing secession. They don't favor any federal law or court ruling that overrules any state law, even a state law they don't like. They are fans of John C. Calhoun.
On the other hand, I once met a libertarian who said the Civil War was great because it unified the country and led to the Interstate Highway System, so he now could drive anywhere on "freeways."
Yes, lately Dr Fleming has been quite hard on libertarians, even the Hoppeans (of which I consider myself) to the point of seemingly blaming us for much of the world's problems.
Mr. Maxwell,
My impression is that Dr. Fleming doesn't blame anyone for the current state of political affairs. He has often said, the jig was up before most of us were even born. We inherited a political and economic ideaology that was fundamentally flawed for achieving the common good. And as Aristotle observed, the beginning is more than half the whole. I think he is simply calling us back to first principles; to seriously reflect and examine our assumptions and their basis in reality. It is sometimes painful for friend and foe alike. I for one always enjoy reading your posts and wouldn't blame you for anything but being serious in a frivolous age.
Here on Maryland's rural Eastern Shore, the tiny town of Ruthsburg is undergoing controversy over property rights. A large farmer, or more likely his children, have decided to sell his farm to the federal government in order for the State Department could build what the bureaucracy calls a Foreign Affairs Security Training Center. A firing range and bomb disposal will be included in the facility. The people of Ruthsburg, inculding the other farmers in the vicinity, are near-unanimous in opposing the facility while the Queen Anne's County Chamber of Commerce supports the facility. A libertarian or radical individualist would come down on the side of the farmer selling the property as he sees fit. A conservative, because the selling of the property would negatively effect the selling farmer's neighbors, would come out against the federal facility.
Although I offer only a thumbnail sketch of what is happening in Ruthsburg, I would appreciate Dr. Fleming's thinking on the property rights involved.
"A libertarian or radical individualist would come down on the side of the farmer selling the property as he sees fit. A conservative, because the selling of the property would negatively effect the selling farmer’s neighbors, would come out against the federal facility."
Derek,
Thanks for the good post. I hope there will be some responses to your excellent question. Isn't there still sufficient land available up there near D.C. around Fort A.P. Hill where a bomb disposal facility would only be a risk to our politicicans and bureaucrats instead of our farmers in Maryland. Where the heck is homeland security when you need them?
Under a just system of property, the problem described in #14 would have been obviated from the beginning through a system of restrictive covenants. Of course, we no longer have the older, civilized understanding of property.
It is an excellent contribution. The problem has several dimensions. First off, a government that actually represented the citizens would never do something like this. We are dealing with a predatory bureaucracy. Second, a local government having to face the wrath of local people could scarcely get away with such a move. Third, the typical free-market defenders of property can have nothing to contribute because they think of property rights as the right to buy and sell, and if there were zoning restrictions to prevent this, they would oppose them. Philosophical and legal individualism is destructive, and not just because of such pernicious consequences as these but because it is based on a legal/philosophical fiction that there is something called the individual.
Mr. Maxwell is once again perverting an otherwise useful discussion. Who in the world would describe himself as a hoppean and who could possibly care if he did? If Richard Weaver, as I suggested above, should not be treated as a guru, then even more so HHH. It is not true, as Maxwell is fully aware, that I have been recently critical of either Hoppe or his followers of whose existence I was unaware until now. The piece in which there was a negative reference goes back several years and when Mr. Maxwell took me to task, I explained and apologized. Why would Maxwell choose to misrepresent (there are harsher words) something like this, when it is so easy to refute him? I conclude that all ideologies are dangerous to the spirit as well as to the mind.
As I have said many times, a classical-liberal Hapsburg legitimist hardly counts as a libertarian, and an admirer of the Dual Monarchy has a good historical basis for understanding the advantages of decentralized or federalist government structures. Most Rothbardians, however, when I first met them, did not distinguish at all between their opposition to a national state and their opposition to the tiniest community structures. Some, like JS Mill, even opposed informal methods of persuasion such as gossip and shaming. Rothbard and I agreed on a little rule which says it is right, generally, to oppose any transfer of power upwards.
Then let us not allow a serious conversation to be distracted by personalities or ideologies. Ideologues who have all the answers before the questions are asked--Marxists and libertarians--have little nor nothing to contribute.
On Greek law, the best way to begin is by getting some solid grounding in ancient Greek history and literature, especially tragedy and the orators. Then you can read Douglas MacDowell's little introduction to law, and follow it with more specialized studies on homicide (Harrison's excellent two volumes), citizenship (JK Davies), property (MI Finley), and family (Lacey). Nothing that is of any value, however, can be read without some reading of ancient history and literature. In Roman law, by contrast, there are dozens of introductory volumes, and of them I do not know which to recommend. Barry Nicholas' Introduction to Roman Law is fairly recent and highly praised. But the same caveat applies: Without some familiarity with Roman history and literature, it will all be a jumble.
PS For Roman family law, I would read the writings on marriage and family by Richard Saller and Susan Treggiari. Both are thorough, intelligent, and capable of making independent original judgments.
As usual, my friend Dr. Fleming's history lesson is fascinating and enlightening.
How refreshing it is to read interesting history and intelligent commentary, as opposed to the obnoxious anti-Christian ideology and carping of the libertarians.
TJF: "This simplistic liberal theory of property rights, then, has many obvious flaws: First, it is an historical invention of comparatively recent times whose claims to universality will not stand much scrutiny; second, it does not at all distinguish between property with which my social identify is bound and property treated as a mere commodity; third, it is part of a general theory of rights for which there is no evidence whatsoever, either in nature or reason or revelation; and, finally and perhaps most decisively, it is part of a generalized program of individualism that pits the naked and helpless individual against the almost all-powerful state. "
TJF: "Athenian law distinguished between ancestral possessions (patroa) and acquired goods or property (epikteta).....In sum, Greek property law reflects a social order based on household and kinship. While personal rights are not neglected, much less unknown, that is not the primary aspect under which possessions were viewed."
This is a fascinating discussion. Thanks for posting it.
As you suggest, I see the contemporary libertarian support of abstract ideological property rights as an unfortunate bi-product of the Cold War (although these tendencies predate the Cold War). I much prefer your more traditional understanding of nuanced property laws reflecting different types of property (e.g. ancestral vs. transferrable property).
Likewise, the libertarian support of ideological individualism is a product of modern times, largely brought about by the modern state (which makes possible such an identity). The historic norm, on the other hand, has been that man is primarily a communitarian / tribal animal. The irony of libertarianism is that if libertarians were successful in destroying the modern state, after the destruction of the state, man would soon revert to his natural (probably socio-bioligical) communitarian/tribal tendencies and libertarian individualism would be extinct.
Dr Fleming, unlike most libertarians I have some humility. I apologize for that bit of hyperbole, written when I first read this piece last night at a late hour.
What I meant though, was that like the traditional Catholics (of which wikipedia considers you to be, if that matters) I believe you have tried to make us part of the direct line of the enemies of tradition, as if we are nearly a homogeneous group. If my perception is incorrect, I apologize again. Perhaps you could balance your critiques with some praise, or re-running an old Rothbard piece where he shows the good sense you say some libertarians lack? I note with some irony, that it is your magazine that introduced me to Rothbard, and through him, libertarianism.
Thank you, Dr Fleming, for your explanation of the basics of Greek law and your reading recommendations. Greek and Roman history and literature are two subjects I have wanted to study for years, if I could find the time. We have most or all of the tragedies and orators available online, now if only there were some kind of Gibbon for early Greece through the fifth century, minus the anti-christianity. There a plenty of texts on Google Books if nothing else.
We need to return to some kind of dominium type of property rights, and perhaps we would need to put limits on the ability to borrow money on such land, lest it all become property of the bankers and not of heirs.
Perhaps Louisiana's law that property can only pass to blood relatives is the closest thing in America to dominium, even if only remotely so.
In response to Derek and the Ruthsburg question, it doesn't speak well of the farmer that he would allow his land to wind up being abused like that. I wouldn't sell an old car to someone who would only wreck it, so how much more should the principle apply to land?. If it's the children who are selling the land, then perhaps more respect for the father would be in order than to allow his farm to wind up like that, and this is especially true if the land goes further back in the family.
I'm not sure why Dr. Fleming should be expected to balance his critiques with praise. What for? The purpose of these critiques is not to create another "fusionist" coalition, but to present the truth about how we've got to be where we are, and why.
Or rather I should write that this is my understanding - I certainly do not presume to speak for Dr. Fleming.
Both of these were directed at Mr. Maxwell.
"On Greek law, the best way to begin is by getting some solid grounding in ancient Greek history and literature, especially tragedy and the orators"
Dr. Fleming, how essential in your opinion is an understanding of Greek and Latin to a humane education?
Thanks to SLT for hitting it on the head. It does not matter whom we may happen to like or dislike, praise or blame, but how to think ourselves into clarity and truth. If we were discussing a relevant topic, such as bureaucracy or time-preference, I should be happy to talk about Rothbard and Hoppe. This discussion is on another topic.
Latin and Greek are the fundamentals of a humane education, but it is not always possible to learn them. My strong recommendation, however, is to try to master at least the first two years of Latin, at which point with a little help you will be able to read Cicero and Vergil. You will find yourself speaking and writing more clearly and effectively and even thinking more clearly.
I would like very much to see an article on time preference, a topic that makes many libertarians uncomfortable and sometimes unwilling to take to its logical conclusion. I repeat something I accidentally posted on Dr Wilson's 'Republican' list:
Mr Toddard, at one time Dr Fleming didnt seem to mind fusionism with some of the better libertarians. Perhaps ‘praise’ is the wrong term, but an example of a libertarian with the good sense he says is lacking would be nice.
I had taken two years of Latin in HS (and read the Aeneid in Latin), but regrettably have forgotten most of what I've learned. I am trying to make up for lost time now (I'm currently reading Butler's translation of the Iliad and will move on to his Odyssey, and then Herodotus' Histories), but have read pieces suggesting that without both Latin and Greek, and without reading the classics in those languages it is more or less all for naught.
"Mr Toddard, at one time Dr Fleming didnt seem to mind fusionism with some of the better libertarians. Perhaps ‘praise’ is the wrong term, but an example of a libertarian with the good sense he says is lacking would be nice."
Dr. Fleming has written kind words about libertarians, in fact just recently about Murray Rothbard among others. So far as any acquire the 'good sense' we speak of, they cease to be - or are not - "libertarians".
It is definitely not for naught. There is a place for translations, and even people pretty fluent in Latin and Greek will pick up a translation of a difficult but not especially writer to breeze through. Some day, you will get a good deal more out of the originals, but many people have gained a great deal from translations. One has to steer a course between a sort of indifferent laissez-faire attitude of "It makes no difference" and a puritanical "Only in the original."
Thank you, Dr. Fleming.
I was wondering if you could address the Greco-Roman tradition regarding homesteading and initial acquisition Dr Fleming. Did the ancient laws differ drastically from later, Lockean arrangements?
First off, a few basics. Anytime governments get into the land business, it is an opportunity for graft and speculation. The more businesslike and ungenerous a policy appears to be, probably the less dishonest. In the American case, the Federal G acquired and gave away huge tracts of land it never should have owned to begin with and once acquired should have sold to relieve the tax burden.
Roman men of wealth were neither more nor less greedy than our own, thus any government-created opportunity to acquire land would be manipulated by the rich.
Second, let us go back to the notion of dominum, which signified the right of the master (dominus) to do more or less as he liked (subject to certain legal restraints) with either the person or property of which he was master. This right is distinguished from the right to make use of property, usufruct. If a true owner with dominium leases usufruct to another, the lord still maintains proprietas, ownership, as opposed to possessio. So, then the question of how a non-dominus acquires property rights was stated by Ray Charles: "If you've got to have something before you can get something, how you get the first is a mystery to me."
An acquisition can either be according to civil law or by nature. A man without dominium might enjoy the use of the goods, as it was called, of a property. If he remained in undisturbed possession and enjoyment of the property with no challenges to his use, he might acquire usucapio, the legal right to exclusive use. The period of time might be as little as 1-2 years.
In the later republic and earlier empire, Rome acquired a great deal of territory by conquest. The Ager Publicus, public land, in Sicily and Southern Italy became a matter of great contention. Laws were passed restricting how much of it could be leased by one person, but inevitably wealthy senators acquired vast tracts that they were forever expanding and converting into genuine ownership. This was part of the controversy in the age of the Gracchi. The other possibility was abandoned or disused land, a problem that came up in the later Empire especially. Then, someone could work the land, make necessary improvements, and acquire legal title. The object of property is never entirely individual, and it was harmful to a local community and to the empire for land to be depopulated and left unproductive.
I hope this is helpful. I am by no means a specialist in Roman law.
Dr. Fleming, thank you for another great article.
I am a senior in college and have a question relating to Nero, I do not know how else to contact you, so I apologize for changing the topic. We had a discussion on whether Nero's reputation is deserving of revision.
If you have the time to discuss this, I would love to hear your response.
"The irony of libertarianism is that if libertarians were successful in destroying the modern state, after the destruction of the state, man would soon revert to his natural (probably socio-bioligical) communitarian/tribal tendencies and libertarian individualism would be extinct."
Indeed, is it not for precisely this reason that some right-libertarians favor libertarian political positions? If it remove hinderances for the development highly organic communities with their appropriate governments, then libertarianism might be useful for a transition phase, back to a more conservative society. If what Mr.Roberts says is true, then it seems that libertarianism holds great potential instrumental value.
I apologize if this is something of a tangent.
Dr. Fleming,
How were the property rights of conquered nations/tribes treated? Was a legal fiction created to justify the taking of those lands (which, depending on your point of view, the US Supreme Court did to deprive the Indians of any rights to land they once "owned") or were the lands simply treated as the spoils of war without any further justification?
It was a basic tenet of the Southern Agrarian message from 1930 onward that there is a fundamental distinction between real (real) property and the rootless, irresponsible abstract property embodied in corporations.
"It was a basic tenet of the Southern Agrarian message from 1930 onward that there is a fundamental distinction between real (real) property and the rootless, irresponsible abstract property embodied in corporations."
Dr. Wilson,
This is why most sharp corporate sharks prefer to buy a corporation's "hard assets" instead of "the irresponsible abstract property embodied in corporations." A rich man I knew once talked his old economics professor into purchasing a certain class of stock in a corporation in which most of the assets were "closely held" or mortgaged in his wife's name. The econ professor experienced a conversion of heart after he lost all of his savings in this stock swindle and later became somewhat of a serious, if not a profound poet. One my favorite lines in one of his last poems was:
"May all those who profit when I buy and sell,
Find their real estate in hell!!"
As to conquered tribes, the Romans waged war according to their own rules and according to ancient conventions. They only went to war when their gods supported the war, which meant that the requirements of justice and ritual were being fulfilled. In principle, this meant no aggressive war only wars in defense. If it was a local squabble settled by treaty, not much land would change hands, but if an ally with obligations defected or rebelled, as was the case in Sicily, then a good deal of territory could be confiscated. There was no need for legal fictions because whatever the Romans did was consonant with what the defeated enemy had done in the past and would do if they were to defeat Rome.
The Southern "Agrarian" understanding of property and land--and I put agrarian in quotation marks because the word agrarian properly refers to a policy of land redistribution--goes back to the early history of the republic, to John Taylor in particular, but the old republican view was heavily based in ancient literature and tradition, in Cicero and Cato, in Vergil and Hesiod. In the case of corporations one has to be very careful to distinguish modern limited-liability corporations set up for the purpose of making profits and ancient and Medieval corporations which were legal associations for a social and or religious purpose. Some of the ancient corporations would be associations of members of a trade, united in religious cults, and providing pensions and funerals for members and their widows and orphans. In the Middle Ages, a typical corporation might be a craft guild or a monastery or college. Its legal existence meant that the King of France, to take one important example, could not crack down directly on the Sorbonne, simply because the dons were teaching a view of sovereignty he found offensive. These corporations naturally owned property, which provided both a home and a source of income--some Oxford colleges still own a good deal of property in the heart of London from which they derive a substantial income. Corporations in this traditional sense and their property are less abstract than the individualist conception of property in modern law.
PS On Nero, there is not too much revisionist scholarship. In general one should treat the accounts of senatorial aristocrats critically. Tiberius, for example, seems to be an overall effective emperor. The accounts of Nero, however, are pretty much in agreement. The first five years, when he was under the tutelage of Seneca andn Burrus, were a golden age, but as he began to get his own way and pursue his sexual adventures, he became a monster. Imagine an American teenager with the power of life and death over everyone he knew. I use that analogy because Nero was brought up by an adoring mother who spoiled him--he murdered her in the end, though one should shed few tears for Agrippina. Still, his crimes did not make him unpopular with the people who were completely unaffected, and both the officer corps and the bureaucrats remained for the most part loyal until he executed one of the best senior commanders, Corbulo on suspicion that he was plotting. At that point, senior officers like Galba in Spain, Vitellius in Germany, and Vespasian in the East, had to begin wondering.
If there us some sympathy today for people like Nero it is because we have grown so Sadistic that we look upon him as he looked upon himself, as an "artist"--a misunderstood creative genius with a playful streak. His bisexualism may be his biggest asset. In fact, he was a mediocrity--unlike most of his family. Augustus was a genuinely great statesman; Tiberius a student of philosophy and rhetoric and an excellent soldier and builder; Caligula was well-educated and apparently a good orator; Claudius was mentally defective in some ways but a real scholar who could speak well when he was not nervous. And Nero? He was the first dominant Roman politician with a speech-writer (Seneca), and his musical performances, if the accounts be true, were semi-professional at best. Poor Vespasian, taken on the grand tour of Greece, fell from favor when, during one of Nero's interminable performances, he either fell asleep or slipped out to relieve himself.
what a nightmare it must have been to have been in the inner circle of this crashing bore.
Taking "Property" this semester in law school, and yes, I would definately appreciate more of your thoughts on this topic, much more!
Reading how Augustus Caesar himself felt the need to respect the local property owners gives rise to a special kind of chagrin for a resident of Chicago, whose mayor can send operatives in the middle of the night literally to carve up the runways of a small airfield that got in the way of one of his illegal Lakefront projects, while threatening to dig up the remains of pioneers in a cemetery obstructing his illegal and dangerous runway expansion plans for O'Hare.
And for one who was once a heedless, if not quite the poet's "ungracious Son", and who now only just manages to stay in the ancestral home one step ahead of the tax collector, the description of dominium ownership is all too poignant. It is especially galling to be under the combined guns of city and county governments, the control of both of which has been inherited by the degenerate sons of criminal fathers. The mayor and county commissioner slide effortlessly into their father's ill gotten gains, while I must look at my father's proud portrait on the mantlepiece and hang my head, knowing that all his sacrifice may soon count for nothing. So perhaps it is best to take this view:
What's Property? Dear Swift! You see it alter
From you to me, from me to Peter Walter,
Or, in a mortgage, prove a Lawyer's share,
Or, in a jointure, vanish from the Heir,
Or in pure equity (the Case not clear)
The Chanc'ry takes your rents for twenty year:
At best, it falls to some ungracious Son
Who cries, my father's damn'd, and all's my own.
Shades, that to Bacon could retreat afford,
Become the portion of a booby Lord;
And Hemsley once proud Buckingham's delight,
Slides to a Scriv'ner or a City Knight.
Let Lands and Houses have what Lords they will,
Let us be fix'd, and our own Masters still.
That the charge of bad grammar
Shall not land us in the slammer,
We're afraid we must regurgitate
Lines writ above in haste.
Said lines had better read:
"controls of both of which were inherited..."
And though effortlessly did said sons slide,
They sprung not from one man's side.
sprang
Really neat stuff. Paints a nice foreground for the background reading now underway of "Socialism". Yet, it sets the mind awhack as well with semi-formed abstractions and understandings. It's difficult and exciting to be a sophomore in things. (I thought I'd already received my education!)
It is impossible to separate concepts of property ownership from the societal view of duty of citizenry, is it not? (that's why we keep straying into discussion on libertarians I'd guess) In the example above of the bomb disposal unit being forced upon farming neighbors, if my memory and understanding are correct, a decent society of "humble" pagans would never allow such a thing either, yet not for concern of personal material property or legality but of social duty.
Is there a place between humility and property for a discussion on charity?
I wish I could say after sifting through this stuff for a few years that I had reached clear and ripe conclusions. The liberal-libertarian mistake about property grows out of their deeper and broader mistake about human nature, for which they have a very thin and unsatisfactory theoretical model based on a few simple principles: 1) moral relations are generic and universal, either in the narrow sense of all parents owe children similar obligations or all people owe the same things to every one else; 2) all moral questions come down to rational individualists making free-will choices; 3) for choices to be rational, they must be made by objective people taking up a third-party position as a bystander or spectator. In fact, human obligations are complex and chewy, with many levels of flavor and texture. So too with property.
To oversimplify grotesquely, one can distinguish between relatively strong forms of ownership, like Roman dominium, and more contingent forms such as feudal tenure--property is a reward for continuing service, and may be inherited but only under certain conditions. A woman, in some circumstances, could not inherit such property because she could not fight for her lord in battle. It was a distorted and abstracted version of feudal tenure that gave rise to the principle of eminent domain, which says that the sovereign is the ultimate master of the land in his domain, and only contingently has granted it to the current possessors, who must surrender their property if it is demanded by the public good. It is often said that the feudal notion of eminent domain never took root in the US, but that is not really true. HEre the courts adopted the fiction that in a democracy, everything is done by the will of the people and by a simple twist of logic, we come straight back to the sovereign's ultimate control of property.
It is not that a commonwealth does not, in time of war or plague, sometimes have to destroy houses or confiscate land. But this was a rare occurrence and recognized by everyone. Even in the case of something so manifestly important for the people, such as a Roman aqueduct, property owners could hold up construction if it damaged valuable farm land, as happened on one known occasion.
Property is not a metaphysical abstraction but an extension of our nature--as a hammer or sword, for example, extends the hand. But I think we might be able to distinguish between merely instrumental property, acquired for sale or for doing business, and property that is an extension of our family and social identity. We try to take care of this in some sense through zoning or the designation of historic properties, but such mechanisms do not go far enough. Here is an historical example from the Roman Republic: land acquired, legally or not from the Ager publicus in Southern Italy, for investment or profit could be reassigned by law, and the only fuss was over money, lost investment etc--usually covered in Roman agrarian legislation. A completely different reaction could be expected from a move against ancestral property with a home place. This latter is almost inconceivable. Even confiscations for taxes or fines owed to the republic were difficult, partly since property owned outright in Italy were not subject, except in wartime, to taxation and partly because fines were levied against persons and not their properties. In today's terms this might mean that just because I owe $100,000 in back taxes to the IRS would not mean they could take my house.