abstract: if the rich have a duty to share with the poor, does this duty carry with it a concomitant right of claim? This is to say, if a rich man has a duty to share with the poor, do the poor have a claim against a rich man that fails to do so?

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by John Fielding

The Debate over Charity and Ownership of Goods

As we discussed in the last issue, the concept of subjective right as a power existing in and issuing forth from the individual made its appearance in the 1100s. It had yet to become the basis for an entirely new theory of rights as seen in Machiavelli and Hobbes through the doctrine of self-preservation. Nevertheless, Brian Tierney has posited, over against others,1 that the notion of subjective natural right based upon a notion of self-preservation made its appearance long before Hobbes.

The Canonists. One way in which subjective natural right developed was within the confines of the dispute over charity and the ownership of goods. The way in which this debate developed was whether the rich had a duty to share the superfluous wealth that they accrued with the poor. The Decretum would seem to indicate so. For example, the Decretum states, "No one may call his own what is common, of which he takes more than he needs, it is obtained by violence.... The bread that you hold back belongs to the needy, the clothes that you store away belong to the naked."2 Thus, the obligation developed from the notion that insofar as the rich have more than they need, they have a duty to share with the poor a portion of that which they have in excess beyond their own needs. However, the further issue developed: if the rich have a duty to share with the poor, does this duty carry with it a concomitant right of claim? This is to say, if a rich man has a duty to share with the poor, do the poor have a claim against a rich man that fails to do so?3 Tierney states: "The canonists first approached this question by asking whether a poor man in extreme need who took the goods of a rich one was guilty of the sin of theft."4

It is not clear. From the beginning, it was felt that all property was common under the natural law, but that over time, this early state of affairs had passed away with the introduction of civil law or Divine law.5 Huguccio came to feel that a natural law could not just cease. Huguccio approached the question with a new formulation of the perennial issue of the origin of private property. Huguccio stated: "By natural ius, that is in accordance with the judgment of reason, all things are common, that is they are to be shared with the poor in time of need. For reason naturally leads us to support that we should keep only what is necessary and distribute what is left to the needy."6 Thus, Huguccio attempted to have his cake and eat it too. Private property was private and common at the same time: private in that ownership was vested in individuals; common in that it was required to be shared. We note, however, the attempt to make all of these formulations is on the ground of reason, and not on the basis of Scripture: reason, as natural law, is once again seen as part of the natural order, pervading all things. It was natural that Divine law should be seen as in accordance with reason because it was all part of the Divine deposit in the world.

The extra step that required private property be shared with the poor upon a recognition of their claim based in natural right came later. Thus, it came to be said that a poor man could not steal, since under the natural law the facet of commonality associated with private property made such a taking in the case of extreme necessity permissible. The poor had a justifiable power that permitted him to take it, that is to say, a right. He did not, as yet, have an "enforceable claim." Huguccio pointed out that there did not exist a legal mechanism for recognition of such a claim. However, a parallel mechanism had developed along-side of the formal judicial procedures of the Roman law. Tuck points out:

Ecclesiastical law was of course greatly concerned with general questions of welfare: in the Church, Europe had an institution unprecedented in the Roman world in that it was actually designed (at least in part) for charitable purposes. It is not surprising that a theory about rights as claims should have evolved from within an institution which was so concerned with the claims made on other men by the needy or deserving.7

A bishop, by virtue of his office as a judge, could hear a complaint that was based, as it were, in mercy and piety, rather than judicial procedure. The bishop could enforce the claim of a poor person against a stubborn rich man by threat of excommunication, among other sanctions.8 Tierney notes that "[t]hese canonistic arguments about the status and claims of needy persons provide an explicit example of an early natural rights theory," the language and reasoning of what would be incorporated by Thomas Aquinas, Godfrey of Fontaines, the Spanish scholastics of Salamanca, as well as, of course, William of Ockham.9 The questions surrounding the development of rights were seen through the problem of self-preservation,10 the problem of use, and the problem of first acquisition. We will address the first two below.

Henry of Ghent: The problem of self-preservation (or "the ownership of self"). Henry was immediately concerned with whether a person condemned to death under the law had a natural duty to flee to preserve his life. Henry framed the inquiry in terms of the "different kinds of rights that the judge and the criminal possessed in the body of the criminal."11 Henry began with distinctions drawn from the first Distinctio of Gratian's Decretum. Fas refers to natural equity,12 "licitum was what the law permitted, ius was the equity that gave a claim to something..., necessitas was the occasion or opportuneness of using something belonging to another."13

Using these distinctions, Henry turns to the task at hand. Under his analysis, using tools derived by Gratian, Henry is able to show that while the judge possesses the body of a criminal for his purposes, the criminal also had the power to use his body to preserve it, as long as he did not injure another in the process. Since this was equitable and licit under the law of nature, there was a right under the law of nature and sometimes even a necessity of doing it. Even in the Ordinary Gloss, a person passing through a field may eat grapes or break off ears of grain if he does not carry them off or injure anyone in so doing. The Gloss concludes: "Although it is equitable by divine law, it is not legal, that is, law does not give a civil action. When something benefits me and does not injure you, it is equitable that you not forbid me to do it although the law fails to require this."14 In light of extreme necessity, a person was allowed to take the food he needed because in such cases, "all things became common."15

It is not too difficult to see where this reasoning leads. While the judge had a right to keep and kill the criminal if he could, this right did not trump the right the criminal had to preserve that which he needed to sustain life, even as he had a right to take food to sustain it. If he was allowed by natural equity to take food, he was certainly allowed to preserve life itself by taking his body out of the control of the judge if he could. The way Henry supported this was to reason that while the judge had a right of use of the criminal's body under law (that is, the ability to exercise some act regarding that body), he did not have dominium (power or ownership) over it. The only person who did was the criminal. Tierney quotes Henry: "only the soul under God has property in the substance of the body." In fact, Henry did not use the common term dominium to describe it since the term was ambiguous; he used the more precise term proprietas (property).

Having introduced us to Henry of Ghent, Tierney concludes that we cannot simply view the self-preservation and ownership of self arguments later raised by seventeenth century individual rights theorists as being a product of their response to the times. The language and concepts of dominium and use had been around a long time before that.16

William of Ockham: The problem of use. Tuck and Tierney both point out that part of the impetus for the development of a subjective rights theory issued forth from the debate between the Franciscans and the other orders regarding apostolic poverty. In brief, "apostolic poverty" was the requirement that the Franciscans own no property in accordance with what they deemed to be an apostolic practice. Consequently, the Franciscans attempted to develop the doctrine in such a way that the use of a commodity would not carry with it a legal entailment of ownership rights (dominium).17

A papal bull (Exiit) issued by Nicholas III in 1279 defined "five types of relationship between a man and a material object."18 Four of the five defined ownership as entailing the ability to transfer or "alien" the object. The fifth had reference to a usage related to consumption, not transferring, which permitted the type of use that the Franciscans were seeking. Because, however, those who could transfer an item could be said to own the item, by a similar conclusion, the ability to transfer or alien the item permitted the conclusion that a person so doing owned the item.19 It is, after all, hornbook law in most jurisdictions that a person can only transfer as much of an interest as one owns in a piece of property. It therefore stands to reason that one may infer ownership of an interest by that fact that a legally enforceable transfer or alienage has occurred.

Further, it was argued by Duns Scotus that the natural law ruled out private ownership because in the state of innocence, all things were used in common. However, common use was not the same as common ownership. "Each human being was simply able to take what he needed, and had no right to exclude another from what was necessary for him."20 Thus, the Franciscans had the ability to derive common use from the state of innocence and the natural law without the concomitance of ownership.

The other orders could not permit this formulation to go unanswered. Tuck states:

To answer the Franciscan case presented in these terms, it was necessary to clarify the assumptions about dominium implicit in (for example) Aquinas, and to develop a rival account of the life of man under the laws of nature or God. The idea that a man could have property as an individual, and that it was not purely a feature of a social life, had to be put forward.21

Beginning in the 1320s, not happy with the implications of such a doctrine of poverty, the ecclesiastical structure began to respond to the Franciscans. The campaign against the Franciscans reached a climax in the papal bull, Quia vir reprobus, of Pope John XXII, no friend of the Franciscans. Pope John put forth the position that God's position with respect to dominium over the creation was "conceptually the same as man's dominium over his possessions" and that this was true with respect to Adam before the Fall as well as after it.22 Therefore, property ownership was as natural to man as it was to God because of the dominion mandate.

Further, the Pope stated that "there could be no separation of use from ownership in things that were consumed in the act of using them.... Only an owner could licitly destroy his own property.... Moreover, the Pope argued, even as regards nonconsumable things, there could be no licit use without a right of using. To use something without a right to use it was simply to act unjustly."23

William of Ockham, the most notable Franciscan of his day, was called upon to refute the Pope, yet to do so in such a way as to be himself within the confines of the definitions and arguments presented in Quia vir reprobus. The common view of Ockham is to theorize that his development of a subjective rights theory in response to Pope John XXII was derivative of his underlying nominalist and voluntaristic metaphysics. This view, endorsed by Heinrich Rommen and Michel Villey, and assumed by Richard Tuck, essentially lays the blame for the destructiveness of the social atomism of the Reformation at the feet of his nominalism, through Martin Luther, and later legal positivism as mere command at the feet of his voluntarism.24 This latter was said to be derivative of his conception, over against Aristotelian necessitarianism, that God was free to do anything he liked, including creating an alternative universe in which it was legal and moral to steal and kill and commit adultery. It is said that this leads to a view of law "as simply the command of a legislator and of rights as mere assertions of individual wills."25

Tierney concedes that Ockham did stress God's omnipotence and man's free will, "but he also insisted that human reason could provide a reliable and necessary guide to moral conduct."The will was equally able to choose good and evil and, therefore, required "a directing rule other than itself. This rule was right reason."26 Tierney elaborates:

Ockham declared over and over again that any virtuous act had to be elicited by the will "in conformity with the dictate of reason." Moreover, the exercise of right reason did not involve merely the formation of moral statements; it included also the act of assenting to such propositions as a source of moral obligation. Evidently, for Ockham as for other scholastics and for the earlier canonists who had defined ius naturale [natural law] as a "force of reason" in man, the term right reason did not mean merely ratiocination (or "reckoning" as Hobbes would put it).... Rather, the Franciscan philosopher was using right reason in a typically scholastic sense to mean a "directing rule" of conduct. As regards the source of this rule's authority, Ockham held it to be a self evident principle of morality (per se nota ) that the will ought to act in conformity with reason.27

While there is much to criticize here in terms of the use of "right reason" as an authority, for the limited point of relating Ockham's view to the earlier scholastics, its significance lies in its refutation that Ockham's views were somehow a radical break from the earlier canonists. They were not. Neither was the view of subjective rights, residing implicitly in their writings, developed by Ockham in response to Pope John XXII.

Pope John XXII had attacked the Franciscans by asserting that property was a "vital need of the body."28 Ockham responded that Jesus and the apostles had renounced all ownership and preserved only "simple use of fact," an aspect of the use of property that Nicholas III had stated in Exiit did not entail property ownership.

Ockham insisted that the dominion announced to Adam was not just announced to him, but also to Eve, which made the right a collective right. Further, the grant was received by Adam on behalf of all of his progeny; therefore, there was no individual right to property that could be derived from Adam. Even if it was found that Adam had dominium over Eve, Ockham hearkened back to the formulation of Huguccio that whatever was given to Adam was given to be shared.29

The Pope insisted that, in the state of innocence, Adam and Eve had property in common "'as regards dominion of property.'"30 Ockham responded to this in a two-fold manner. First, he denied that dominion such as was granted to Adam and Eve was a property right, but simply a power of rule and use. For Ockham's argument, this use did not convey or reflect ownership. Further, the animals were granted the power to take food from the creation but were not granted dominion over the creation.31

Ockham, disputing both Pope John and his earlier Franciscan opponents, denied that the age of innocence was any clear guide to the issue of property ownership, which Ockham insisted was a later development. The earlier church authorities that had used the age of innocence to compare the situation of Jesus and the apostles had only used it for analogical purposes, and not to insist on a one-for-one identity. The age of innocence no longer existed, and the apostles were not able to return to it.32 But from whence did private property come?

Ockham introduced, as may be seen above, a distinction between "a power to appropriate and an actual right of ownership."33 Ockham denied that the power of appropriating came before the Fall. Rather, it "came from human nature in its fallen condition and from human reason."34 Ockham insisted that the source of particular property rights came from voluntary human agreements.35 This was not unique to Ockham. Gratian had put forth the view "that property had its origin in human law or custom."36

Tierney summarizes Ockham's view of the origin of property as follows:

There was a time before sin when our first parents had no property but a power of using things; then there was a middle time after sin but before the division of things when they had a power of appropriation; and finally a time after division was made when individual possessions came to exist. In Ockham's view property emerged during this third epoch in a historical process that involved a long series of voluntary arrangements among humans--compacts, customs, the laws that peoples made for themselves, and finally the laws of kings and other rulers. But the foundation that made the whole process legitimate was natural equity and the "dictate of reason" indicating that private property was a fitting arrangement for fallen humanity. By arguing in this way Ockham drew the whole discussion about the origin of property away from the idea of a state of nature understood as a primeval condition of things in order to emphasize instead the permanent nature of human beings as creatures endowed with reason and free will.37

Lest we be concerned that our exploration of the origin of "rights-thinking" has taken us far afield indeed, Tierney points out that in reading the works of the seventeenth century rights theorists like Hobbes, Pufendorf, Filmer, Selden, and Grotius, we are reintroduced to all of these concepts as if for the first time (probably through the Spanish scholastics, such as Suarez). The rights to use (and, later, hold) property are thus distinguished from the power to acquire property. Later, this general distribution of "natural rights" will be used by Ockham to justify a right of the people to consent to licit rulership (and to depose illicit rulers).38

Endnotes

1. Leo Strauss and Richard Tuck, among others.

2. Brian Tierney, "The Idea of Natural Rights: Studies on Natural Rights", Natural Law and Church Law 1150-1625 (Atlanta: Scholars Press, 1997), p. 70 (quoting the Decretum, Dist. 47 c.8).

3. Tierney, pp. 70-71.

4. Idem.

5. Tierney, p. 71.

6. Ibid., p. 72.

7. Richard Tuck, Natural Rights Theories: Their Origin and Development (New York: Cambridge, 1981), p. 15.

8. Tierney, p. 74. The thought of deriving all of this from the law of gleaning never seems to have occurred to anyone because that law, the writer would suggest, was seen as deriving from natural law rather than the other way around.

9. Ibid., pp. 74-75.

10. Contrary to a certain belief, the doctrine of self-preservation as a basis for human right did not originate with Machiavelli or Hobbes, but is found much earlier.

11. Tierney, p. 84.

12. Gratian, "The Treatise on Laws with the Ordinary Gloss" (Vol.2, Studies in Medieval and Early Modern Canon Law, Kenneth Pennington, general editor; Washington, D.C.: Catholic University, 1993), Dist. 1, C.1, §3.

13. Tierney, p. 84.

14. Gratian, Dist. 1, C. 1, §3.

15. Tierney, p. 85.

16. Tierney, pp. 88-89.

17. Tuck, p. 20.

18. Idem.

19. Ibid., p. 21.

20. Idem.

21. Ibid ., p. 21.

22. Idem.

23. Tierney, p. 96.

24. Ibid., p. 97.

25. Ibid., p. 98.

26. Ibid., p. 99.

27. Ibid., pp. 99-100.

28. Ibid., p. 157.

29. Ibid., pp. 158-159

30. Ibid.., p. 159.

31. Ibid., p. 161. See Tuck, pp. 22-24.

32. Ibid., p. 162.

33. Ibid., p. 163.

34. Ibid ., p. 164.

35. Ibid., p. 165. See also Tuck, p. 11.

36. Idem.

37. Ibid., pp. 166-167.

38. Ibid..

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