Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Friday, October 14, 2011

Duns Scotus: On Property and Social Contract

SCOTUS DID NOT WRITE A POLITICAL TREATISE, nor did he comment on anyone's prior political work such as St. Thomas commented on Aristotle's Politics. However, Scotus addresses the issue of private property during the course of his discussion of confession, specifically, the issue of whether someone needs to make restitution of property to receive absolution from the sin of theft or unjust taking of property. In addressing this question, Scotus goes into a brief excursus on private property, its fons and origo, and this takes him briefly into the origin of human government which he sees as the origin of private property. Succinctly, Scotus appears to depart from the common teaching that private property arises out of a natural law right. Rather, for Scotus, the right to private property is entirely one of positive law.

Scotus's treatment of private property and human government is found in distinctio 15 of the Ordinatio IV (q. 2). It is also mentioned in the parallel section of his Paris Lectures (qq. 2-4).

Blessed Duns Scotus Contemplating the Immaculate Conception

Scotus accepted the common teaching that, prior to the Fall of man, all things were owned in common, there being, under the natural law at the time, no such thing as private property. It was this state of original justice that drove the communal aspect of ownership in the early Christian Church and the shunning of private ownership by his own religious order, the Franciscans. After the Fall, however, private ownership as a general rule seems to have become the norm, and even common ownership such as in the early Church or among the religious, derives, not as a matter of natural law, but as a matter of common consent or religious doctrine, and Scotus asks why this is:

I ask: What is the source of distinct ownership such that this may be called "mine" and that "yours"? For all injustice through misappropriation derives from this as well as all justice through restitution.

Ordinatio IV, dist. 15, q.2 (Wolter, 219)

The answer to that question leads Scotus to a series of six conclusions. They are of significance because of their departure from ordinary teaching that private property is part of the natural law. Equally significant is Scotus's early social contractism or government by consent as it relates to the origin of human government.

The notion that prior to the Fall, ownership of property among humankind was in common rather than in the form of private property (Scotus's first conclusion) is adopted by Scotus both as a matter of authority (he cites to Gratian's Decrees, dist. 7, ch. 1, his causa 12, q. 1, and to St. Augustine's Commentary on the Gospel of John). But he also seeks to understand the rationale behind this belief. Given the purpose of property (to contribute to human flourishing) and the lack of disorder in paradisaical man, it seems that no one would have taken more than he needed from the commonality, and no one would have used force to take from others. However, "after the Fall of man, this law of nature of holding all things in common was revoked." Ordinatio IV, dist. 15, q. 2 (Wolter, 220). This is Scotus's second conclusion.

The reason behind the post-lapsarian revocation of common ownership is, for Scotus, two-fold. First, contrary to matters prior to the Fall, common ownership after the Fall would not have lead to peace, but would have acted against it. Covetousness raised its ugly head, and common ownership would have led to warfare as the covetous man sought to take more from the commonality than he required, and would have defended against others' use of it. The result would have been unequal distribution of goods, with the powerful obtaining more than their fair share. In such circumstances, private property is a superior institution than communism.

The revocation of the natural law of common ownership after the fall meant that something else had to replace that law. The revocation does not necessarily imply that a certain system is compelled. Thus, the revocation allowed merely "permission . . . to appropriate and divide up what had been common," and no particular form of private property or division was required either by natural or divine law other than a broad requirement of justice. Since the source of private property does not seem to come from either divine or natural law, Scotus believes it comes from positive human law. "[I]t seems more plausible to say this [the division of common property] was effected by positive law than the law of nature [and] the first division of property was brought about by some positive legislation." Ordinatio IV, dist. 15, q. 2 (Wolter, 221) (This is Scotus's third conclusion.)

Any positive law that parcels out property and creates private property requires both authority and the exercise of prudence or practical right reason, and so Scotus addresses those issues. Scotus's fourth conclusion is that the just division of common property into private property, and institution of human positive law, "requires of its legislator" "prudence and authority." The prudence is required of the legislator so that "he might dictate what ought to be established for the community according to practical right reason." Id.

This requires just authority, and Scotus asks the question where such just authority may be found. This leads him to the question of the origin of civil or political authority. First, Scotus distinguishes between two kinds of authority: paternal authority and political authority. Political authority he further divides into two general divisions: political authority vested in one person and political authority vested in a group.

Paternal authority is of natural law institution, and it remains unaffected by the Fall as a source of authority:

[P]aternal authority is just be natural law in virtue of which children are bound to obey their parents. Neither was this revoked by any positive Mosaic or Gospel law, but rather it was confirmed.


Political authority ought to be distinguished from paternal authority:
Political authority, however, which is exercised over those outside [the family], whether it resides in one person or in a community, can be just by common consent and election on the part of the community. [This authority] has to do with those who live together, even though there is no consanguinity or close relationship between them. Thus, if some outsiders banded together to build a city or live in one, seeing that they could not be well governed without some form of authority, they could have amicably agreed to commit their community to one person or to a group, and if to one person, to him alone and to a successor who would be chosen as he was, or to him and his posterity. And both of these forms of political authority are just, because one person can justly submit himself to another or to a community in those things which are not against the law of God and as regards which he can be guided better by the person or persons to whom he has submitted or subjected himself than he could by himself.
Id. (Wolter, 221-22)

This teaching of Scotus is historically significant. As C. R. S. Harris puts it:
Scotus is important in the history of political science as one of the pioneers of modern social theory. His doctrines [on social contractism] bear a strong resemblance to the late teachings of Locke. Scotus' account of the social contract is a philosophical analysis of the origin of society. Society, he held, was naturally organized into family groups; but when paternal authority was unable to enforce order, political authority was constituted by the people. Accordingly, [for Scotus] all political authority is derived from the consent of the governed.
(quoted in Wolter, 74)

This civil or political authority, justly originated in common consent, would therefore be authorized to pass just laws. (Fifth conclusion.) This conclusion sets Scotus up to address the issue of the source of private property.

From the institution of civil or political authority and its authority to pass just laws, private property is justified:

The first division of ownership could have been just by reason of some just positive law passed by the father or the regent ruling justly or by a community ruling or regulating justly, and this is probably how it [the regulation of property into private ownership once the natural law of common ownership was revoked] was done.

Id. (Wolter, 222)

The source of private property, then, is from human positive law, and is the result of the lacuna, or absence, of either natural or positive divine law after the revocation of the natural law of common ownership occurred after the Fall of mankind (sixth conclusion).

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