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THE RIGHT OF INDIVIDUAL OWNERSHIP-DOES IT SPRING FROM THE NATURAL OR THE

HUMAN LAW?

UND

NDER the above title we propose to fairly and squarely put

before our readers the two prevailing opinions in Catholic schools as to the right of individual ownership.

The first maintains that the origin of that right must be sought in a formal or presumed agreement among the nations of the earth. It was generally held by those authors who wrote during that period which embraces the latter part of the Middle Ages, down to the first half of the eighteenth century.

The second opinion insists that the right of individual property is derived from the natural law. This, with hardly any exception, is the opinion of all modern Catholic writers on the subject.

Before entering upon a detailed explanation of each of the two systems, we deem it necessary to say a few words by way of introduction, in order to render the problem easier and more intelligible to our readers.

In the first place, it is to be observed that whatever may be the opinion held by the authors of either system as to the origin of individual proprietorship, they all agree that the fact which brings into existence such a right is human activity, which either apprehends a certain object and appropriates it; or exercises itself upon a certain object to produce a change in its form. The first is called Occupancy, the second, strictly speaking, Labor.

Again, the objects which may be appropriated may be either substantially permanent, whatever be the use to which they may be put and whatever change of form they may be made to undergo; or they may be perishable by use. It is agreed by the writers of both contending opinions, with few exceptions, that the right of individual property in things perishable by use is derived from the natural law. “As all things,” says Cardinal Gerdil, “which the earth produces, fruits, vegetables, roots, plants, domestic as well as wild animals, are so fitted to the necessities, use and advantage of human life, that reason cannot fail to see that they were not made by accident, but, as the philosophers themselves acknowledged, designedly given to mankind by a most beneficent God; and, on the other hand, as God has gifted man with intelligence and free will and other faculties in order that he might dispose of all things, and appropriate them to his own use, it follows that by an institution of nature and in force of the natural law

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man may make use of all exterior things for food and raiment, and the preservation and enjoyment of life; and thus to have a real dominion over these things.” (Gerdil, Theol. Moralis, Cap. 4, Prop. 2.)

But how with regard to those goods which are permanent, and which human personality by its activity may occupy not only to apply to his own profit those fruits which they spontaneously yield, but also in order to exert its own activity upon them, to increase and to multiply their productiveness and their value ?

Here the divergence of the two opinions begins. The first maintains that both the right to occupy and to appropriate permanent goods, such as the earth and the fruit it naturally produces, and the right to own what is produced by human activity exerting itself upon those goods, are derived from a human positive compact creating and sanctioning such a night. For the sake of brevity and clearness we will call the upholders of such opinions Compactists.

The second opinion holds that both rights, the one which comes from the part of occupancy, and that which comes from human labor, spring necessarily from the natural law. We will designate the defenders of this second opinion by the name of Naturalists.

But as it is evident that human activity cannot exert itself upon nothing, and that all possible exercise of men's powers presupposes the occupancy and appropriation of a permanent object, prominent among which must be reckoned the earth, it follows that the question about the right of individual proprietorship finally and in the last analysis must be reduced to the right originating in the occupancy of the earth.

The problem, being thus narrowed down to land, may be put as follows: Does the right of private ownership in land originally springing from occupancy arise from the natural law or from the purely positive law of a human agreement?

At the commencement of man's history the earth was unoccupied and common to any one who might chance to be cast upon it. Gradually and insensibly we find the same earth cut up into parcels of different sizes, and appropriated by certain individuals, families, or nations.

Now it may be asked by what law was the earth divided and appropriated by individuals, families, or nations ? Was this partition made and the appropriation effected by a right inherent in man's nature and wants, or was it done and effected by a mutual agreement among the nations, and therefore by a purely human positive law, perhaps reasonable, but none the less arbitrary? Here we may as well define what is meant by natural law, and what is understood by merely positive human law.

The natural law is that which results from the necessary intrinsic and essential relations of things. For instance, we desire to ascertain what is the law governing the free action of man in respect to his God. We have recourse to the essential and necessary relation of things, and we ask, what are the essential intrinsic relations of man with regard to God? And by studying the terms of the relation, their respective natures, the bond which unites them together, we find that man stands to God in the relation of a creature to his Creator, and therefore in the relation of absolute dependence upon Him in everything, his nature, his existence, the preservation of his existence, etc.; and we conclude that the law which should necessarily govern man's free action as to his Creator is to theoretically and practically acknowledge this relation of dependence with all the powers and faculties of his nature. The natural law, therefore, is that which emanates and is derived from the intrinsic and essential relations of things; and a right originating in the natural law is a moral faculty to do, or to have, cortain things resulting from the necessary and essential relations of things.

The purely and simply human positive law is a rule of action, by no means resulting from the necessary relations of things, but made and enacted purely by the will of man ; and a right springing from such a law is a faculty to do or to have certain things, deriving its existence and force simply from the will and authority of man.

The differences between the two rules of action referred to are too obvious to need much elucidation. The things commanded or forbidden by the natural law are called good or bad because they are so of their own nature; whereas the things commanded or forbidden by the positive law are called good or bad, not because they are such indeed considering their nature, but because they are commanded or forbidden.

The second difference is that the natural law obliges all at all times and in all places. The merely positive human law binds only those for whom it is made, in the place and time specified.

The third difference is that the natural law, the relations of things remaining the same and unaltered, is immutable; whereas the positive law can always be changed.

From the differences we have pointed out it is apparent that the natural law and the merely positive human law differ in almost everything in their source—the former originating in the essential relations of things, the other in the arbitrary will of man; in the extent of their obligation—the one binding all in time and space ; the other obliging some in a certain locality and for a time; in the nature of the obligation—the one being necessary and immutable ;

the other changeable at will. There is only one point of contact between them, but it is a point of the highest importance. It is this : that a merely positive human law, to be a law, and to have an obligatory force, must have the sanction of the natural law.

This may be understood in a twofold sense, in a positive as well as in a negative sense. A human law is said to have the sanction of the natural law in a positive sense when it is really and directly conformable and agreeable to the natural law. A human law is said to be sanctioned by the natural law in a negative sense if, when considered in all its circumstances, its source, its nature, its comprehension, its permanence, its effects, it does not conflict with the natural law. The positive sanction of the natural law is not at all necessary to the human positive law; because a thing commanded by a human law may be altogether outside the province of the natural and necessary relations of things, and nature may be absolutely unconcerned about it; for instance, that such and such a tax, ordered by the government, should be paid on such a day, at such a time and place. But the sanction in the second sense is absolutely necessary to a human positive law; the moment such a law conflicts and is in opposition with the natural law, that moment it ceases to be a law and loses all binding force; for no law is possible, no matter by what positive authority it may be enacted, if it contravenes the precept of the natural law and therefore runs counter to the essential and necessary relations of things.

Between the natural law and the merely positive human law is to be ranked what is called the jus gentium, of which we must give an idea to complete our preliminary remarks.

All authors agree that the jus gentium is something between the natural law and the merely positive human law. “Having explained,” says Suarez, “the natural law, it is but proper that we should, at the end of the book, treat of the jus gentium, inasmuch as it partakes of the nature of law; not only for its affinity with the natural jus, which is so great as to have caused many writers to identify it with the natural jus, but also by the manner in which it differs from it; it is nearest to it and almost medium between the natural and the human jus.” (Suarez, De Legibus, I., b. 2, ch. 17.)

There are several opinions as to the nature of the jus gentium, but the principal may be reduced to two. The first maintains that it is a conclusion of the natural law, necessarily resulting from the essential relations of things, a conclusion drawn by the human intellect, at all times and in all places, the moment it reflects on the natural law. “Sentiunt (aliqui theologi) jus gentium habere intrinsicam necessitatem in suis præceptis, solumque differri a naturali, quia jus naturale sine discursu innotescit, jus autem

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gentium per plures illationes et difficiliores colligitur." (Suarez, ib., par. 8.)

Others opine that the jus gentium is not the same as the natural jus, or implied in it as a consequence is included in its premises; but, properly and strictly speaking, it is nothing more than a real positive human law, since its enactments do not emanate from the necessary relations of things, but are introduced by the consent and pleasure of men in view of their fitness and utility.

Jus gentium non est idem cum jure naturali proprie et stricte sumpto, nec sub illo continetur, sed sub positivo.

“Probatur. Jus naturale est absolute et ex natura rei necessarium, independenter a concursu hominum; jus positivum, contra; atqui jus gentium non est absolute et ex natura rei necessarium, sed secundum utilitatem et congruentiam ex hominum beneplacito et consensu introductum.” (Billuart, De Just. et de Jure, D. III., I Art., 3).

According to the advocates of the opinion just enunciated, the differences between the natural law and the jus gentium are very important.

The first is that the affirmative precepts of the jus gentium do not imply and suppose a real necessity of the thing demanded, as in the case of those of the natural law which are deduced from the nature of the thing, by an evident conclusion from natural principles.

" Jus gentium non infert necessitatem rei præceptæ ex sola rei natura per evidentem illationem ex principiis naturalibus, quia quidquid hujus modi est, est naturale.” (Suarez, ib.)

The second difference is that the negative precepts of the jus gentium do not prohibit a thing because evil in itself and of its own nature, but the prohibition causes it to be considered bad.

"Simili modo præcepta negativa juris gentium non prohibent aliquid quia per se malum; nam hoc est etiam mere naturale, unde non prohibet mala quia mala sunt, sed prohibendo facit esse mala." (Suarez, ib.)

The third difference is that the jus gentium cannot be considered immutable and unchangeable, in the same manner as the natural jus; because immutability has its origin and source in the necessity of the thing; and that which is not equally as necessary as the things commanded or forbidden by the jus gentium, cannot claim the same immutability.

" Jus gentium non potest esse tam immutabile sicut naturale; quia immutabilitas ex necessitate oritur; ergo quod non est æque necessarium non potest esse æque immutabile." (Suarez, ib.)

Fourth difference: Strictly speaking, therefore, the jus gentium must be considered a simply and merely human law.

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