Smith contrasts the modern secular approach to private property with the traditional Christian theory.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In the previous two essays I explained the traditional Christian view of property, according to which there existed only common property in the earliest societies, as illustrated in the biblical account of the Garden of Eden and in various Roman accounts of the Golden Age. Private property came about only after Adam’s Fall into sin had thoroughly corrupted human nature with avarice, pride, and other evil tendencies that were absent in prelapsarian man. God mandated private property (along with government and slavery) for postlapsarian man as a punishment and remedy for sin.

I will now explore some features of secular accounts of the justification and origin of private property, especially as they appear after 1600 in the writings of various Protestant philosophers of natural law, most notably Hugo Grotius (1583–1645) and Samuel Pufendorf (1632–94). To call these accounts “secular” is not to say that they omitted God from their accounts of natural law. Consider this famous passage by Grotius, from the Prolegomena to his celebrated and highly influential text, The Rights of War and Peace (1625): “What we have been saying [about natural law] would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him.”

Although Pufendorf and some other modern natural‐​law philosophers disagreed with Grotius in this matter, we should not suppose that Grotius was proposing an atheistic system of natural law. In fact, the position taken by Grotius had been around for many centuries, especially in the writings of Thomistic philosophers. Natural law, in the theory defended by Thomas Aquinas (1225–74), is that part of divine law that is knowable to human reason without the aid of divine revelation, such as the Bible. Even God could not change the fundamental precepts of natural law, according to this approach, because this would require that God contradict himself, which is something that even omnipotence cannot do. God created human beings and their environment, and the basic precepts of natural law emerge necessarily from these elementary facts. True, God could have created man with a different nature than he now has, in which case different natural‐​law principles might apply; but given human nature as God created it, the fundamental precepts of natural law are permanent and unchangeable, and they can be known to every human being through the use of reason.

In opposition to this intellectualist school of thought (as it is often called) stood the theory known as voluntarism—so called because of its emphasis on the primacy of God’s will over his intellect—which is often associated with Duns Scotus (1266–1308) and William of Ockham (1287–1347). In the voluntarist scheme, God’s will is primary and literally can accomplish anything, including transforming something that is currently evil into something good, and vice‐​versa. Consider the age‐​old question: Is something good because God wills it, or does God will it because it is good? The voluntarists embraced the first part of this dichotomy, claiming that actions are good or evil merely because God wills them to be so. Thus if God willed that rape and murder are morally good, then those actions would become morally good.

Aquinas and other intellectualists disagreed, of course. Even God could not render rape and murder morally good, given human nature as he created it. After creation, therefore, God wills something because it is good; his willing per se does not make it so. Or, to speak more precisely, God’s will necessarily coincides with the good, because having willed that humans should possess certain characteristics, he simultaneously willed the moral implications of those characteristics. The fundamental moral precepts of natural law could change only if human nature itself were to change.

We see traces of this approach in the theory of original sin and its influence on the Christian theory of property rights. Given human nature in its undefiled, prelapsarian state, common property was a precept of natural law. But original sin drastically changed human nature, so God mandated special institutions—namely private property, government, and slavery—that overrode the original natural law; these institutions were needed to control and punish humans who were now vitiated with sin. (Some historians, most notably Ernst Troeltsch in his classic work, The Social Teachings of the Christian Churches (1911), have dubbed the divine commands for sinful human beings a secondary natural law, but there has been some controversy over whether this is an accurate label. Rather, many theologians view those commands as a type of divine positive law, not as a species of natural law. Although I am personally fascinated by this and similar controversies within Christianity, I doubt if many of my readers, especially my fellow atheists, will share my interest in such arcane theological disputes. I will therefore avoid detours into technical points as much as possible and rest content with generalizations.)

Returning now to Grotius: His claim that the precepts of natural law would remain valid even if there were no God places him squarely within the intellectualist tradition of Aquinas and others. As Grotius also wrote in the Prolegomena, shortly after his notorious statement about God: “But the law of nature of which we have spoken, comprising alike that which relates to the social life of man and that which is so called in a larger sense, proceeding as it does from the essential traits implanted in man, can nevertheless rightly be attributed to God because of his having willed that such traits exist in us.”

Thus, as noted earlier, the secular approach to property rights did not altogether exclude God from the picture. But the secular approach, generally speaking, rested its claims on reason and history, not on biblical authority and certainly not on papal decrees, as Catholic writers on natural law frequently did. Many secular philosophers of natural law, such as Grotius and John Locke, were liberal Protestants who rejected a literal reading of the Bible. Hence Grotius regarded Adam as a general “type,” not as a specific individual; Adam represents human beings before the evolution of private property. Likewise, the story of Cain and Abel—“a tiller of the ground” and “a keeper of sheep” respectively, according to Genesis 4:2—symbolizes an early division of labor that resulted in violent conflict. As for the “tree of knowledge” from which Adam and Eve ate the forbidden fruit, this symbolized a growing awareness of moral options, both good and evil, from which man must choose. Although Grotius agreed with conventional Christian teaching that mankind in his primitive state was probably morally innocent, he speculated that this innocence resulted from an ignorance of vice, not from a commitment to virtue. The vicious tendencies that many Christians attributed to original sin were, for Grotius, the consequence of the greater number of options and sources of pleasure that attended more advanced societies. With more choices and more appealing things to choose from came greater temptations. As a number of writers in the Grotian tradition would later observe, if there was virtually no theft in early, primitive societies, this was because they produced nothing worth stealing.

Moreover, there is no hint of original sin or of its effects on human nature in the account of Grotius or in other secular philosophers of that era. Although Grotius cited the Book of Genesis and other parts of the Bible from time to time, he treated them as historical sources, exactly as he did when citing Livy, Tacitus, Seneca, Cicero, and other pagan writers.

When it came to the issue of common and private ownership, the key passages were those found in the first chapter of Genesis, as in verse 26 (RSV):

Then God said, “let us make man in our image, after our likeness; and let them have dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over all the earth, and over every creeping thing that creeps upon the earth.”

Since God granted “dominion” over the earth and its nonhuman creatures to mankind in general, this decree became a pillar passage used to support the claim that prelapsarian man owned everything in common. (Sir Robert Filmer, John Locke’s primary target in Two Treatises of Government, was a curious exception; he maintained that God’s grant of dominion over the earth was made to Adam as an individual, so private property was established at the outset.) For centuries, therefore, controversies over common versus private property hinged on the meaning of “dominion.” Whatever we may think of the source of these controversies, the ensuing debates served a valuable role in clarifying the meanings of “common” and “private” property.

An important innovation was made in this field by some leading Protestant theorists of natural law, who distinguished between a positive and a negative community of goods. In his massive and highly influential work on international law, On the Law of Nature and Nations (1672; trans. C.H. and W.A. Oldfather, Clarendon Press, 1934, p. 537), Samuel Pufendorf wrote:

[I]t is clear that before any convention of men existed there was a community of all things, not, indeed, such as we have called positive, but a negative one, that is, that all things lay open to all men, and belonged no more to one than to another.

In other words, in the primitive condition of mankind, all natural resources were unowned, and all people possessed an equal right to use those unowned goods. Grotius had previously defended this notion of a negative community of goods with equal use‐​rights, but his explanation was not as clear as that given by Pufendorf, and it was Pufendorf who first applied the terms “negative” and “positive” to this issue. A positive community of (say) land would have been akin to joint‐​ownership, a condition in which every person would have a say in how land was used. It was this conception—as used, for example, by Herbert Spencer—that made private property in land (or in any other natural resource) very difficult to justify. (See my discussion in Herbert Spencer, Henry George, and the Land Question, Part 2.)

But the conception of a negative community of goods, as defended by Grotius, Pufendorf, and many other modern writers on natural law, was a different matter entirely. Here the common right was not one of joint ownership but of usufruct, or the equal right to use unowned property that had not already been appropriated by others for their use. A notion of private property was latent in this notion of a negative commons and a universal use‐​right, as Pufendorf pointed out.

But since things are of no use to men unless at least their fruits may be appropriated, and this is impossible if others as well can take what we already by our own act selected for our uses, it follows that the first convention [about private property rights] between men was about these very concerns, to the effect that whatever one of these things which were left open to all, and of their fruits, a man had laid his hands upon, with intent to turn it to his uses, could not be taken from him by another.

Grotius had made the same point. The primitive communism discussed by many ancient writers was not a type of joint ownership. Rather the common right in question was to the “use of all things,” and this common use‐​right served the same purpose in primitive societies that private property would later serve in more advanced civilizations. Suppose I pick some apples from a tree with the intention of eating them. Prior to my action every other person had an equal right to use those apples; but after I appropriate them it would be unjust for anyone to take those apples from me. At that point in time I may be said to have dominion over those apples. The fact that I must consume the apples in the course of using them, thereby leaving nothing behind for others to use, does not violate the rights of anyone else, for no one had property rights in the apples before I used them. Suppose, in contrast, that the apple tree were already the private property of another person. In that case I would be committing theft if I picked the apples without the owner’s permission.

According to Grotius, the fact that food and drink must be consumed in the very act of using them, thereby leaving nothing behind for others, implies the notion of private property, and this notion was gradually extended, over time, to other resources. As Grotius explained in a very interesting passage (in Commentary on the Law of Prize and Booty):

It is evident…that the present‐​day concept of distinction in ownership was the result, not of any sudden transition, but of a gradual process whose initial stops were taken under the guidance of nature herself. For there are some things which are consumed by use, either in the sense that they are converted into the very substance of the user and therefore admit of no further use, or else in the sense that they are rendered less fit for additional service by the fact that they have once been made to serve. Accordingly, it very soon became apparent, in regard to articles of the first class (for example, food and drink), that a certain form of private ownership was inseparable from use. For the essential characteristic of private property is the fact that it belongs to a given individual in such a way as to be incapable of belonging to any other individual. This basic concept was later extended by a logical process to include articles of the second class, such as clothing and various other things capable of being moved or of moving themselves. Because of these developments, it was not even possible for all immovable things (fields, for instance) to remain unapportioned, since the use of such things, while it does not consist directly in their consumption, is nevertheless bound up [in some cases] with purposes of consumption (as it is when arable lands and orchards are used with a view to obtaining food, or pastures for [animals intended to provide] clothing), and since there are not enough immovable goods to suffice for indiscriminate use by all persons. (Brackets are in the original translation by Gwladys L.Williams, first published by Clarendon Press in 1950 and reprinted by Liberty Fund in 2006, pp. 317–18.)

Much more remains to be said about the secular conception of private property, so I shall continue this discussion in my next essay.