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.

Id.

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).

Natural Law's Modern Cousin Germain: Authority

HOW IS IT THAT SOME LEGITIMATELY AND MORALLY claim to to have and exercise authority over others? And what is the extent, the boundaries beyond which that authority cannot go? Why does someone else have the right to pass laws that frustrate, nay even prohibit my choice in the exercise of practical reasonableness and selection of basic human values, or that punish me by loss of goods, loss of freedom, even loss of life if I act in a manner that the authority sees fit to proscribe? Why is it that some statements or propositions (say laws) are authoritative, and what, precisely, does that mean? For Finnis, authority and what is authoritative find their source in practicable reasonableness with particular reference to the common good. It is the common good that justifies both authority and its exercise and justifies those statements (laws) that are authoritative in providing guidance to our actions or in prohibiting certain actions. Finnis, we will see, rejects all "legal fictions" that are used to justify authority (e.g., transference from the people, social contract, general will, whatever it may be). He finds authority to be justified in nothing other than the common good's need of it and the common good's recognition of authority as effective for that end.

In the life in common with others, authority, it may be observed, is not only required to prevent against the stupidity, the incompetence, or the ill will and wrongful act of those within its boundaries (although the existence of stupid, incompetent, or morally bad actors may certainly justify its exercise). But even in the company of the intelligent, bright, and morally responsible authority is required as, for example, some scientific or religious community or fraternity. Even angels need authority, as do the devils. Authority is required to order a community, whether that community is composed of angels, devils, or a creature hovering somewhere in between as man seems to be. It follows that authority is something more than merely guarding against wrong, something more than just restriction or punishment. Authority is not only needed to guard against harm to common good, but it is required to enable any group of people to achieve its common purpose and common good. It has an affirmative role to play, not just a negative role. Indeed, the negative role is a reflection of its basic affirmative coordinating, instrumental role. Authority, moreover, may be positively required so that certain things can be decided upon and acted upon, e.g., the use of commonly held resources or the imposition and fair allocation of commonly-owed obligations, or the handling of disputes among its various members. The decisions that have to be made and the coordination that is required for a life in common requires authority, if for no other reason than that the only other possibility--unanimity of action--are, for any large group, impracticable and even impossible to attain.

John Fortescue (1394-1476)

Recognizing the need for authority, Finnis provides us a rather comprehensive definition of authority, focusing on its central case:

A person treats something . . . as authoritative if and only if he treats it as giving him sufficient reason for believing or acting in accordance with it notwithstanding that he himself cannot otherwise see good reason for believing or acting, or cannot evaluate the reasons he can see, or sees some countervailing reason(s), or would himself otherwise (i.e., in the absence of what it is that he is treating as authoritative) have preferred not so to believe or act.

NLNR, 233-34. Borrowing from the concepts of authority used by Joseph Raz, Finnis encapsulates this notion of authority by characterizing it as an "exclusionary reason," that is, a reason that substitutes for our own judgment or acting in the absence of, or in opposition to, our own reasons. This sort of thinking is redolent of the comment of Edward Coke, who defined law as "artificial reason." Authority, in this view, then is "artificial reasonable choice" that is recognized as somehow binding.

One immediately sees a problem with the definition. It is subjective and not objective. Cannot something be authoritative even though I do not recognize it to be so? If I be an atheist, can I really say that the Ten Commandments are not authoritative just because they are not in my perception authoritative? If I am a rapist, can I say that the criminal laws are not authoritative if I treat those laws that way? If I am a revolutionary, a rebel, acting against constituted authority based upon some Marxist ideology that makes be convinced in the illegitimacy of the regime to which I am opposed, does that mean that there is no authority? These propositions seem dubious and expose the weakness of Finnis's definition of what is authoritative. His definition fails to consider sufficiently any notion of objective authority, an authority that pends, remains, or binds even if the subject refuses to recognize it or obey it. There is an element of authority that remains unaddressed by his theory. This is not to say that his theory of authority is wrong, but perhaps it is not entirely complete.

Finnis then divides the definition of authority into three broad categories. These are based upon the perspective of the person who may say, "X is authoritative." The first, most full sense would be when the statement is made by one who recognizes that he is subject to that authority as, e.g., a citizen of the United States may say when he says that the "Constitution is authoritative." We might call this a statement of what the speaker subjectively holds to be valid authority. The second sense would be by one who does not himself consider himself bound by the authoritative statement, but reports that there are others who who are bound to see X as authoritative. So, e.g., a Russian professor may, in another sense from the first sense, tell his students that the U.S. Constitution is authoritative over the American citizen. He does not see himself bound by the authoritative statement, but reports that others are bound to the statement (that is, the Constitution) as authoritative.* He is reporting on what others see as valid authority. The third way of making that statement is more subtle. In this last sense, the speaker neither sees himself under the authority nor claims that others are under that authority, but states that there are some who from their perspective, whether they are making the claim of authority or subjecting themselves as authority, see the statement as authoritative. The difference between the second and third way is that in the second way the authoritativeness is endorsed as real or existing, whereas in the third way the perception of authoritativeness is neither endorsed nor rejected but simply reported as prescribed by someone or accepted by someone. The first two ways may be said to be "basic" or "primary" senses of reports of authority.

The distinction between authority as valid, authority as what others see as valid, and authority as what some, whether those in authority or those under that authority, claim to be valid is important to maintain against the positivist, who would focus only upon the first sense in devising his "concept" of what is law or what is authoritative. If a certain law is claimed to be authoritative in the first sense, but that law is against the common good, a positivist would claim that it makes no sense to talk about the proposition of law as being on the one hand authoritative (in the sense of it being valid) and yet on the other hand as not being authoritative (because it is against the common good). This is the same thing as saying that a law is valid and yet invalid, which would present a clear contradiction. But this is not what the advocate of natural law is doing. The advocate of a natural law jurisprudence when confronted with an unjust law would be criticizing something as authoritative in the second or the third sense and saying that though others may see the unjust law as valid or make the claim that it is valid, it in fact is not valid because it is against the common good. There is no contradiction when the sense of authoritative is used in the second or third senses. Something claimed as valid or viewed as valid may not in fact be valid if against the common good. The distinctions are obvious, and it is curious how the positivists miss the point.

Skipping over Finnis's laborious analysis of custom, we shall complete this review of Finnis's treatment of authority in his book Natural Law and Natural Rights by looking at his brief treatment of authority and its legitimacy. Finnis criticizes theories of authority that are based upon such legal fictions as transmission, contract, or custom (and, it goes without saying, divine right). He begins his analysis by observing that there is a practical need for authority, that the common good requires it, and that therefore it is a requirement of practical reasonableness:

The need for somebody, or some body, to settle coordination problems with greater speed and certainty [than custom] is apparent in any community where people are energetic and inventive in pursuit of their own or of common goods, not to mention any community threatened with military, economic, or ecological disaster.

NLNR, 245-46.

Authority and the responsibility for its application are thus based upon practical need, and their efficacy is an important aspect of its existence and justification. However, effectiveness "is not the last word on the requirements of practical reasonableness in locating authority." Nevertheless, effectiveness "is the first and most fundamental" part of authority and its exercise. An ineffective authority is no authority, and has lost its legitimacy. Efficiency or efficacy, it would appear, is therefore a necessary but not a sufficient condition.

The fact that that the statements (laws) of some body that is exercising authority are complied with and acted upon by a large number of people (i.e., that the statements are recognized as binding) is an important consideration in assessing their legitimacy and the moral obligation to obey. Clearly, when there is a large portion of the community of which one is part that recognizes certain pronouncements by someone or some body claiming authority as authoritative that fact is an important factor in practical reasonableness in establishing that authority's legitimacy. The moral issue of whether obedience is demanded and owed clearly comes into play when a large part of the community views obedience as owed. "These normative consequences derive from a normative principle--that authority is good (because required for the realization of the common good)." NLNR, 246. Again, however, this is not an absolute rule. The fact that obedience to some exercised authority is commonly accepted and therefore makes a claim to normativeness, does not make the "normative consequences" "indefeasible." There may be a presumption of legitimacy and moral normativity, but that presumption is rebuttable. For one, if the body that is exercising practical power that is recognized even by a large proportion of the common body is exercising it a manner that is against the common good--say a usurping tyrant who enriches himself and his family, or a Hitler who is using his power against the good of a certain segment of the community)--the fact that a large portion of the population accepts the authority does not translate to moral legitimacy. (One may call the fact that the authority is recognized or accepted by a large part of the population the empirical reality of authority.) The substance behind the exercise of authority (one may call this the moral reality of authority), and not the exercise of authority alone and its consent by others, is also factor in considering whether authority is legitimate or morally binding or not.

Finnis makes a distinction between "acquiescence" and "consent." In assessing the legitimacy of any authority, the fact that a large number "acquiesce" because of fear of sanction or other reason (such as personal gain, the leader's charisma, ideology) is substantially different from the fact that a large portion of the populations "consent" to the authority as good. External acquiescence versus internal consent is important to consider. A tyrant who has a cowering population acquiescing to his rule is different from a leader who has a willing population consenting to his rule.

What role does reference to prior authority have to that authority's legitimacy? Is authority like a land title or deed, whose claim may be assessed by investigation into the chain of title from grantor to grantee back to the conveyance to the sovereign? In other words, does the "legalistic" argument have any application to the issue of authority, or is it just a question of effective rule? If confronted with two claimants to the papacy, say and Urban VI and Clement VII, do I ask the question, "Which of the two men who claim to be pope is more effective?" Or do I ask the question, "Which of the two men who claim to be pope has the best claim to legitimacy under canon law?" How would I determine the pope from the antipope?

That question is more difficult than the issue of civil or secular authority because the papacy is of divine foundation, and is not one whose authority is obtained from the common consent of the Church members as secular authority is generally held to be. But, in any event, the example helps to formulate the question and see the issue involved, that being that efficiency is not the sole determination of legitimacy.

One possibility of legitimizing authority is to pin it upon prior authority, whether as a sort of inheritance from prior authority (e.g., a King's appointment of his heir or the dictator of his successor), or transference from the people through some sort of legal fiction, social contract, or custom. Finnis is critical of the received answers for determining properly constituted or legitimate authority. The standard answer is found, for example, in Cardinal Bellarmine's "transmission theory" as may be found in his Controversiarum de membris ecclesiae and which he translates as follows:

[Political] power is of divine right, but divine right did not give it to any particular man; therefore it gave it to the multitude. Apart from positive law, there is no greater reason why, out of many equals, one rather than another should dominate; therefore power belongs to the whole multitude.

Nam haec potestas est de jure divino. At jus divinum nulli homini particulari dedit hanc potestatem: ergo dedit multitudini. Praeterea sublato jure positivo, non est major ratio cur ex multis aequalibus unus portius, quam alius dominetur. Igitur potestas totius est multitudinis.

NLNR, 257 (quoting Bellarmine, Controversiarum de membris ecclesiae, III, c. 6 as translated by Yves Simon)

One may also find a similar idea in Francisco de Vitoria:

For divine and natural law require that there be some power to govern the commonwealth, and, in the absence of any positive or human law, there is no convincing reason that power should in one person versus another, and it is necessary that the power should reside in the community so that it may be able to govern itself.

Nam cum de iure naturali et divino sit aliqua potestas gubernadi rempublicam, et sublato communi iure positivo et humano, non sit maior ratio ut potestas illa sit in uno quam altero, necesse est ut ipsa communitas sit sibi sufficiens et habeat potestate gubernandi se.

NLNR, 257 (quoting De Potestate Civili, c. 7)**

Finnis rejects Bellarmine's transmission theory and finds it the result of a fallacy, specifically one arising from the notion that the community has authority over itself. If it has authority over itself it is because it is exercising unanimity, in which case it does not need a leader. If there is no unanimity (and it has no authority over itself, and so needs a leader), then it has no power to transfer to another. So when authority is needed the commonality has no authority to transfer, and when the commonality has unanimity and therefore plenary power, it has not need for authority. In Finnis's view, legal fictions such as social contract, custom, etc. are not required.

[T]he required state of facts is this: that in the circumstances the say-so of this person or body or configuration of persons probably will be, by and large, complied with and acted upon , to the exclusion of any rival say-so and notwithstanding any differing preference of individuals about what should be stipulation and done in the relevant fields of co-ordination problems.

NLNR, 249.

Finnis therefore adopts a functional view or test of authority, though he admits that perhaps people make take it as a "scandalously stark principle." That authority then passes laws, recognized by the population, for the transference or continuation of such authority. "[T]his tendency of political thinkers to utter legalistic fictions about the original location of authority has its excuse, and perhaps it occasion (but not a justification), in the urgent need to legalize the devolution of undevolved authority." NLNR, 250.

Finnis does enunciate two "riders" or caveats to his "scandalously stark principle" of authority. The first is that once the rules for devolution of power are fashioned, the population must--as a mandate of practical reasonableness--acquiesce (or withhold acquiescence) or comply (or withhold compliance) to the extent the person or body is (or is not) designated as the lawful holder of authority through the laws that handle the devolution of power. The second "rider" is that consent has a role: when a person or body's statements will be taken as authoritative "when a practical reasonable subject, with the common good in view, would think that he ought to consent to them." NLNR, 251.

These, Finnis observes, are riders, not fundamental principles. The fact is that most governments did not obtain the consent of the governed until after they first usurped the prior government, and obtained practical acquiescence.† Finnis quotes the jurist Sir John Fortescue, who stated that "amongst nearly all peoples, realms have come into being by usurpation, just as the Romans usurped the government of the whole world."†† And so whether it is the "law of nature" such as Sir John Fortescue would have it, or the "principles of practicable reasonableness that call for co-operative life in the wide 'political' community, and for the authority that alone makes that life practicable," as Finnis would have it, the fact that we live under a functioning government is reason alone to give it--subject to the riders mentioned by Finnis--legitimacy. The fictions of transference from the people, social contract, etc. are simply not needed. A functional or pragmatic sanction is good enough; a sanction through sufferance is sufficient. Whether the authority was originally acquired through adverse possession or through legitimate title is immaterial: if it's working at the present, the common good and principles of practical reasonableness require that we respect it as legitimate and worthy of support and obedience.

Once the legitimacy and foundations of authority are established, Finnis turns to law. And that is where our attention shall now turn.
_____________________________
*A professor in the U.S. could also say to his law students that the "U.S. Constitution" is authoritative over the citizens of the United States," in the sense of the Russian professor if he abstracts himself or brackets himself from his position as citizen.
**The translation is mine. Curiously, the Cambridge translation of Vitoria's work On Civil Power translates "iure positivo et humano" as "human elective franchise (suffragium)," but unless there is a variance in the underlying texts, the Latin quoted by Finnis has nothing to say about elective franchise or suffragium.
***Belarmine's works in Latin are available at Sydney Penner's web page: see Bellarmine's Works.
†This is true even of the U. S. Constitution which most scholars recognized went far beyond the original mandate given to the Constitutional Convention to amend the Articles of Confederation and not to draft an entirely new Constitution, and so, in some ways, could be argued as a product of an illegal convention. But in light of the overwhelming consent to its legitimacy, it would be foolish at best to suggest that it was not, in fact, binding on the conscience of any American. And that does not even consider the fact that it was the result of a rebellion against legitimate authority, perhaps one (that at least in the loyalists' eyes, and certainly in the eyes of King George and his advisors) illegitimate and treasonous.
††John Fortescue, De Laudibus Legum Angliae, c. 12: Sic et Romani orbis imperium usurparunt, qualiter fere in omnibus gentibus regna inchoata sunt.

Contra Consequentialismum: Contractual Conundrum

ODERBERG OBSERVES HOW HIS THEORY OF RIGHTS departs starkly from that notion of rights that was advanced by the social contract thinkers. His criticism is levied against those who believed that the social contract which took us out of the "state of nature" was historically real such as Hobbes, Locke, and Rousseau. But it equally applies to the likes of Kant or Rawls, who did not think that the social contract was a historical fact, but simply a convenient way of thinking of things, a heuristic device, as it were.

Falling Through the Conventionalist Trap Door

If one believes that rights originate with the social contract--whether it is real or hypothetical--one has fallen through a conventionalist trap door into a cellar of relativist morality. All morality will be a matter of convention, and there is virtually no limit to the conventions that men can make among themselves, and all morality becomes a matter of convenience. The conventions that may be imagined can easily turn out to be very repugnant, depending on the bias of the one making the contract, and the social contract theorists have come up with devices (such as the Rawlsian "veil of ignorance" and "difference principle") whose aims are to remedy the fundamental defect in the theory. A lot of these devices begin to smell like pre-existing ethical principles which are suggestive of a system of right and wrong that is given.

One of the biggest hurdles confronting a social contract theories is the issue of bindingness of the contract. Why should any person be bound by the supposed convention? If the contract is hypothetical, as distinguished from historical, the problem becomes even more apparent. It is bad enough for me to be bound by some compact made long in the past, and about which I had no say. But to be bound by a contract that is not even real, but hypothetical, seems to be an absurd limitation on freedom of action.

Some social contract theorists suggest that the social contract, whether real or hypothetical, binds because of its rationality. But that simply begs the question by placing it a bit further back and transforming it to the question: Why is the social contract rational?

To avoid the conventionalist trap, some conventionalist suggest that there is an underlying reality, "an unchanging, prior notion of individual benefit and harm from which follow the foundational and subsidiary principles governing the contractualist decision procedure." Oderberg, 65. But, if so, then it would appear that the greater reality is not the social contract, but this reality behind it.

So the social contract theorists finds himself perpetually in a dilemma. Either he takes the position that the social contract is good because it is binding or he takes the position that it is binding because it is good. If he takes the first route, he falls into the pit of conventionalism in ethics, and all is relative. If, to avoid this result, he takes the second fork, the social contract theory itself becomes of secondary importance because the greater reality is the "good" that is presupposed and enforced by the social contract. In the latter case, the social contract is "theoretically dispensable."

By "theoretically dispensable" I mean that it does no work in accounting for the origin of morality in general and rights in particular. The work is being done by a prior notion of the good and of the rights and duties flowing from that notion properly analyzed. . . . Any social arrangement, to be just and desirable, must be ordered according to the true system of morality.

Oderberg, MT, 65. Which is, of course, another way of saying that any social arrangement cannot violate the natural moral law, since that is the theory that insists that morality is not conventional, but based upon the nature of things.

C'mon guys. Isn't it time to admit the social contract theory is a failure?