-Caveat Lector- CHAPTER ONE Property and Freedom By RICHARD PIPES Alfred A. Knopf THE IDEA OF PROPERTY Property can be studied from two distinct points of view: as a concept and as an institution. The two approaches yield very different results. Throughout the history of thought, property has enjoyed a mixed reputation, being identified sometimes with prosperity and freedom, sometimes with moral corruption, social injustice, and war. Utopian fantasies, as a rule, place the abolition of the distinction between "mine" and "thine" at the center of their vision. Even many thinkers favoring property view it as, at best, an unavoidable evil. The history of all societies, on the other hand, from the most primitive to the most advanced, reveals the universality of property claims and the failure of every attempt to found a propertyless community, whether voluntarily or by force. In this instance, therefore, there is an unusually wide disparity between what mankind thinks it wants and what, judging by its actions, it really prefers. Lewis Mumford explained this disparity by suggesting that man lives in two worlds-the world within and the world without, the first being the realm of ideas, wishes, and images, the latter that of harsh, inescapable reality. "If the physical environment is the earth, the world of ideas corresponds to the heavens." We shall, accordingly, divide our discussion into two parts. The present chapter will deal with the attitudes toward property of Western philosophers, theologians, and political theorists. The chapter that follows will be devoted to the institution of property as revealed by history, psychology, anthropology, and sociobiology. The distinction, of course, is artificial and is introduced only for the sake of clarity of exposition; in actuality, ideas and events have constantly interacted. As we shall point out, every change in attitude toward property can be explained by political or economic developments. Discussions of property from the time of Plato and Aristotle to the present have revolved around four principal themes: its relation to politics, ethics, economics, and psychology. 1. The political argument in favor of property holds that (unless distributed in a grossly unfair manner) it promotes stability and constrains the power of government. Against property it is claimed that the inequality which necessarily accompanies it generates social unrest. 2. From the moral point of view, it is said that property is legitimate because everyone is entitled to the fruits of his labor. To which critics respond that many owners exert no effort to acquire what they own and that the same logic requires everyone to have an equal opportunity to acquire property. 3. The economic line of reasoning for property holds that it is the most efficient means of producing wealth, whereas opponents hold that economic activity driven by the pursuit of private gain leads to wasteful competition. 4. The psychological defense of property maintains that it enhances the individual's sense of identity and self-esteem. Others assert that it corrupts the personality by infecting it with greed. These four approaches fairly exhaust the range of arguments for and against property articulated during the past three thousand years. At its most fundamental, the controversy pits the moral approach against the pragmatic. 1. Classical antiquity The ethical treatment of property, which has dominated the discussion until modern times, has evolved against the background of a pervasive belief in the existence of a "Golden Age." In its most familiar guise, the Golden Age is the Jewish, Christian, and Islamic Paradise (Garden of Eden), but in one form or another it is common to all civilizations. The outstanding quality of this mythical past is the absence of private ownership: in the Golden Age everything is said to have been held in common and the words "mine" and "thine" were unknown. Since, as we shall show in the chapter that follows, no society has ever existed without some kind of property, the vision of an ideal propertyless world must be grounded not in collective memory but in collective longing. It is inspired by the belief that inequalities of status and wealth are "unnatural." They have to be man-made, not God-made: for are not all beings born equal and, upon death, do they not turn alike to dust? The earliest known depiction of the Golden Age occurs in a work by Hesiod, a contemporary of Homer, called Works and Days. The Greek poet of the early seventh century B.C.E. speaks of four "metallic" ages of mankind-the Golden, Silver, Bronze, and Iron, each latter age marked by progressive moral decline. In the earliest, Golden age, when the world was ruled by the Titan Cronus, all goods were available in abundance and peace prevailed. But in his own time, which he labeled the Age of Iron, Hesiod saw violence and the "shameful lust for gain" prevail over justice. This image of the blissful infancy of humanity entered the mainstream of Greek and Roman literature. As we shall see, the idea of the Golden Age exerted great influence on European thought of the Renaissance period, stimulating the voyages of discovery and influencing how the discoveries were perceived. The earliest theoretical assault on property is to be found in Plato's Republic, a work which has exerted influence on all subsequent utopias. The Republic and its successor, the Laws, were not the first works to seek ways of eliminating property as the cause of social strife, but the writings of Plato's predecessors have not survived and are known only from hearsay. Plato wrote at a time when Greece was in turmoil from social conflicts within the city-states and wars among them. He is said to have been inspired by the example of Sparta, a highly centralized state in which the government prevented the concentration of wealth in the hands of the elite, and which in the drawn-out Peloponnesian war ultimately defeated and subjugated Athens. Sparta's triumph was widely attributed to her constitution, said to have been drawn up by Lycurgus, her legendary founder, which outlawed trade and industry in order to free the citizens for war. Spartans were forbidden to own not only material goods but even their wives and children: wives they were expected to share with other men, likely to breed healthier and stronger offspring, and children they had to turn over to the state at the age of seven for martial training. Plutarch, who summarized the views of Greek historians on the subject, wrote that Lycurgus had ordered the notables of Sparta to renounce their properties. He also commanded all gold and silver to be surrendered and replaced with iron coinage. As a result, luxury, theft, bribery, and lawsuits disappeared. Disparities of wealth and poverty gave way to equality. An egalitarian society devoted entirely to the needs of the state must have seemed highly attractive to an Athenian who witnessed his own city-state destroyed by ambition and greed. As we shall note in the following chapter, Athens had a highly developed system of private property, which explains the attention paid to it by her philosophers. Plato outlined his utopian communism through the mouth of Socrates in Books 5-7 of the Republic. His objective was to devise a social order in which the ruling elite would not be driven by selfishness but dedicate itself wholly to the public good. To this end, it was divested of belongings. Referring to contemporary political upheavals, Socrates says: Such differences commonly originate in a disagreement about the use of the terms "mine" and "not mine," "his" and "not his." ... And is not that the best-ordered State in which the greatest number of persons apply the terms "mine" and "not mine" in the same way to the same thing? The ideal Platonic state consisted of two castes: the rulers, called "Guardians," made up of the oldest and wisest members of the community, and the rest. The Guardians, who ran the state, acquired their status after passing rigorous tests. They owned no property-neither houses nor land-so that they would not "tear the city in pieces by differing about `mine' and `not mine.'" Plato saw property and virtue as incompatible: "For are not money and virtue like the two scales of a balance: as one goes up the other goes down?" The Guardians lived communally, like the Spartans, holding wives and children in common; their basic material needs were provided for by the commoners, whose status Plato left vague, but who seem to have been allowed to have families and to own property. As a consequence, rivalries within the ruling class ceased: there was no more cause for violence, quarrels, or flattery. This ideal of a selfless caste of the select, totally devoted to the state, would be realized (in theory, at any rate) 2,500 years later in the Communist and Nazi parties. In the Laws, a later work, Plato attempted to design a state that would conform more closely to reality, and hence he abandoned the insistence on abolishing the family and having the state assume responsibility for the education of children. But his earlier egalitarian utopianism survived. He now allowed private property but wanted the state to ensure that it did not lead to extremes of wealth and poverty, especially in the distribution of land. The ideal of a propertyless world remained: The first and highest form of the State and of the government and of the law is that in which there prevails most widely the ancient saying, that "Friends have all things in common." Whether there is anywhere now, or will ever be, this communion of women and children and of property, in which the private and individual is altogether banished from life, and things which are by nature private, such as eyes and ears and hands, have become common, and in some way see and hear and act in common, and all men express praise and blame and feel joy and sorrow on the same occasions, and whatever laws there are unite the city to the utmost-whether this is possible or not, I say that no man, acting upon any other principle, will ever constitute a state which will be truer or better or more exalted in virtue. Plato's vision of the ideal society was challenged by Aristotle in the Politics. Aristotle shared his teacher's belief that extreme inequalities in the distribution of wealth lead to social strife. But he regarded the institution of property as indestructible and ultimately a positive force. Plato, in Aristotle's judgment, confused and treated as one the diverse elements that make up the body politic-household, community (village), and state. His error lay in treating the state as if it were a household and hence assigning it control of wealth. Property, in fact, is an attribute of the household and not of the community or the state: "states require property, but property ... is no part of a state." Aristotle based his opposition to common ownership not only on logical but also, and principally, on utilitarian grounds. It is impractical because no one takes proper care of objects that are not his: "How immeasurably greater is the pleasure, when a man feels a thing to be his own; for surely the love of self is a feeling implanted by nature...." Gratification of self-love is thus the basis of a good society. Aristotle rejects Plato's argument that common ownership does away with social discord, arguing that, on the contrary, people who hold things in common tend to quarrel more than those who own them personally. He sees the cause of social discord not in the striving for property but in human nature-"it is not possessions but the desires of mankind which require to be equalized"-from which it follows that dissension is best eliminated by enlightenment rather than the abolition of private ownership. Furthermore, Aristotle argues, possessions enable men to rise to a higher ethical level by giving them the opportunity to be generous: "liberality consists in the use which is made of property"-an argument which would greatly appeal to Christian theologians of the Middle Ages. Aristotle's preferred regime was one founded on a middle class, with an equitable distribution of assets. The differences between the two Athenian philosophers foreshadow the course of thought on the subject for the next 2,500 years: the continuing controversy between ethical idealism and utilitarian realism. Throughout the history of Western thought, writers on property will align themselves, broadly speaking, either with Plato or with Aristotle, stressing either the potential benefits of its abolition or the tangible rewards of its acceptance. In the fourth century B.C.E., after the death of Plato and Aristotle, the discussion of property was raised to a higher, more abstract level through the introduction of the Stoic principle of Natural Law. Stoicism's contribution to the shaping of the Western intellectual tradition is probably second only to that of Jewish monotheism. If monotheism advanced the revolutionary concept of an all-powerful and all-pervasive but non-material God ruling the universe, the theory of Natural Law posited that God's universe was rational and capable of being grasped by human intelligence. Although, like so much else, the concept of the Law of Nature was already incipient in Aristotle, it matured only after he had passed from the scene, first in Greece under Macedonian rule and then in Rome. Plato and Aristotle thought exclusively in terms of city-states, small communities of citizens of the same ethnic origin, religion, and culture. Politics was for them largely a matter of custom, not of laws-hence for Plato the ideal society had no statutes. (According to Plutarch, Lycurgus would not permit the rules he had laid down for Sparta to be committed to writing.) But the problem of laws arose in an acute form in the fourth century when Philip of Macedon and his son, Alexander the Great, liquidated the polis in favor first of the national state and then of the multinational empire. The Macedonian Empire at its height extended from the Aegean Sea to the Indus River and the Arabian peninsula. Subject to Macedonian authority, in addition to the Greeks, were Armenians, Bactrians, Jews, Egyptians, Indians, Parthians, Sogdians, and a host of other nationalities speaking different languages and professing different faiths. And applying different laws. These legal disparities the Macedonian statesmen had somehow to reconcile for the sake of imperial unity and administrative efficiency. But their existence also raised a fundamental philosophical question: were there as many conceptions of justice as there were nations-in other words, was there no universal standard of right and wrong-or were the diverse legal canons and procedures merely adaptations of the same universal law to local conditions? The answer was supplied by the Stoic school, which emerged concurrently with the Macedonian Empire. Its central notion of a rational world order was already incipient in early Greek science, which differentiated between the infinite variety of discrete natural phenomena and the underlying unity of the laws governing Nature. This idea was in time applied to human affairs. It can be discerned in casual passages of Aristotle's Nicomachean Ethics which speak of justice as existing in two forms: "legal" (conventional) and "natural." The former finds expression in positive law, adapted to the particular needs of a given society, and hence differing from nation to nation, whereas the latter is uniform for all mankind. Aristotle had no need to develop this idea further, since he dealt with homogeneous societies. This was done by Zeno, the founder of the Stoic school: "The fundamental principle of the Stoic ethics and politics is the existence of a universal and world-wide law, which is one with reason both in nature and in human nature...." Just as the physical world has its universal and eternal laws, so does humanity. The revolutionary element implicit in Stoic philosophy was the contention that the fundamental principles of the social order are not subject to change because they are embedded in the natural order. At the core of this order is the equality of men and women, freemen and slaves. Freedom consists of living according to the laws of nature. During the three centuries that separated Aristotle from Cicero the idea of the Law of Nature gained wide acceptance in the Mediterranean world, although its apogee lay still far ahead, in sixteenth- and seventeenth-century Europe, where it would help jurists and political theorists emancipate their disciplines from theology. It has been said that since Plato and Aristotle no one has been able to write about private property without asking whether or not it is "natural." Indeed, until the late eighteenth century, and in some respects until today, the discussion about property has revolved around the question whether it belongs to the "natural" or the "conventional" order of things. This issue lies at the heart of the dispute between the moral and pragmatic approaches: for if property is a matter of convention it can be done away with, but if it belongs to the realm of nature, it is an unalterable fact of life. Stoic philosophy and the concept of Natural Law had greater influence in Rome than in Greece, its country of origin. The ancient Romans were not given to abstract speculation, and they neither debated the advantages and drawbacks of private ownership nor thought up imaginary ideal communities. But men who take pride in their pragmatism often follow trails cleared by idealists. Roman poets adopted the Greek notion of the Golden Age when all goods were held in common and which came to an end with the triumph of avarice and the resultant reign of injustice and strife. Virgil wrote of the Golden Age as a time when no tenants mastered holdings, Even to mark the land with private bounds Was wrong: men worked for the common store, and earth Herself, unbidden, yielded all more fully. Ovid portrayed the Iron Age as one in which The earth itself, which before had been, like air and sunshine, A treasure for all to share, was now crisscrossed with lines men measured and marked with boundary posts and fences. Seneca, the leading Stoic in Rome, who has been called "a millionaire with a guilty conscience," never tired of extolling poverty. "He who has made a fair compact with poverty is rich," he taught his friend Lucilius. The social virtues had remained pure and inviolate before covetousness distracted society and introduced poverty, for men ceased to possess all things when they began to call anything their own.... How happy was the primitive age when the bounties of nature lay in common and were used promiscuously [indiscriminately]; nor had avarice and luxury disunited mortals and made them prey upon one another. They enjoyed all nature in common, which thus gave them secure possession of the public wealth. Why should I not think them the richest of all people, among whom there was not to be found one poor man? This praise of social equality in Stoicism made it a kind of religion and enabled it to exert influence on Christianity in its formative phase. The main Roman contribution to the idea of property lay in the realm of law. Roman jurists were the first to formulate the concept of absolute private ownership, which they called dominium and applied to real estate and slaves-a concept lacking in the Greek vocabulary. For an object to qualify as dominium, it had to satisfy four criteria: it had to be lawfully obtained, exclusive, absolute, and permanent. The best-known Roman law definition described dominium as "the right to use and consume one's thing as allowed by law" (jus utendi et abutendi re sua quatenus iuris ratio patitur). Roman jurisprudence went to great lengths to stipulate every conceivable nuance of property rights: how acquired and how lost, how transferred, how sold. The fights implicit in dominium were so absolute that ancient Rome knew nothing of eminent domain. ------ For all their pragmatism, Roman jurists were compelled to seek a philosophic basis to law because, like the Macedonians, as their domain expanded from a city-state first into a nation-state and then into an empire, they confronted a bewildering variety of legal norms and procedures that differed from their own as well as from each other. The problem arose even before Rome had become mistress of the Italian peninsula, for from early on Roman courts had to deal with foreigners who came on business or who married Romans. The local law, jus civile, did not apply to them, as it was restricted to Roman citizens. Roman jurists had to seek, therefore, common principles underlying the diverse legal systems with which they came in contact. As Rome's territory expanded around the Mediterranean basin, they formulated a Law of Nations (jus gentium) which synthesized the rules shared by all nations known to them. Under the influence of Stoic philosophy, the Law of Nations gradually fused with the Law of Nature (jus naturale); the process was completed in the early third century C.E., when Roman citizenship was extended to all the subjects of the empire. Thus came into being a fundamental postulate of Western thought: that right and wrong are not arbitrary concepts but norms rooted in nature and therefore binding on all mankind; ethical problems are to be solved with reference to the Law of Nature, which is rational and supersedes the positive law (jus civile) of individual societies. An essential element of the Law of Nature is the equality of man, specifically, equality before the law, and the principle of human rights, including the rights to property, which antedate the state, and thus are independent of it. Fifteen hundred years later these ideas would furnish the philosophical cornerstone of Western democracy. Initially, Roman philosophers and jurists treated private property as part not of the Law of Nature but of the Law of Nations. In time, however, as the two concepts fused, they came to view it as grounded in Natural Law. A theoretical defense of private property as a feature of Natural Law, however, was not fully made until the sixteenth and seventeenth centuries, the age of Jean Bodin and Hugo Grotius. But that the idea occurred to Romans is evident from Cicero's argument that government could not interfere with private property because it had been created in order to protect it. 2. The Middle Ages The church fathers faced serious difficulty in confronting the subject of private property. According to the Gospels, Jesus urged the rich to turn their belongings over to the poor because wealth was an obstacle to salvation. He rejected possessions for himself and his disciples. The Gospels and other parts of the Christian Bible are filled with censure of riches and exhortations to renounce them, as in the familiar aphorism "It is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God." At the same time, in his personal life Jesus was not an ascetic: he did not spurn property or even wealth but visited the houses of the rich and allowed himself to be entertained by them. Because of the expectation of the imminence of the Kingdom of God, the Christian Bible "does not seem to contain any definite theory of property." Some historians question whether Jesus really propounded a program of social reform: according to a leading specialist on the subject, his was rather "the summons to prepare for the coming of the Kingdom of God" to take place "within the framework of the present world order." In any event, the early Christians applied the teachings of Jesus to themselves only: The new social order ... was confined to the Christian community; it was not a popular program of social reform in general. Within the Church itself ... the only communism which was possible was one which differed from all other forms of communism and can only be described as the religious Communism of Love. That is to say, it was a communism which regarded the pooling of possession as a proof of love and of the religious spirit of sacrifice. It was a communism composed solely of consumers, a communism based on the assumption that its members will continue to earn their living by private enterprise, in order to be able to practice generosity and sacrifice. Above all, it had no theory of equality at all, whether it be the absolute equality of sharing possessions, or the relative equality of the contribution of the various members to the life of the whole according to merit and service.... Finally ... there was no hostility to that which forms the real hindrance to a true communism-opposition to the institution of the family, which is so closely connected with private enterprise. The early Christian church accepted private property as a fact of life and concentrated on exhorting the faithful to engage to the maximum extent possible in charity. Belongings were considered evil only if selfishly used. Yet a church based on the advocacy of self-denial grew before long into a huge temporal power with vast landed possessions and other forms of wealth which it needed to carry out its religious and secular responsibilities. It also faced the reality, tacitly assumed by Jesus but often misunderstood by more devout Christians, that for the millions of its adherents material goods were a necessity: clearly, not everyone could take the vows of poverty and devote his or her entire life to Christian piety as a priest, monk, or nun, any more than everyone could practice celibacy. A compromise thus had to be found between the Christian ideal and the mundane reality. It was found, and proved eminently satisfactory. The basic premise of Christian theologians held that property derived not from the Law of Nature but from conventional (positive) law and as such had to be respected. It was potentially an evil capable of corrupting the soul and leading to sin. But, in the words of Augustine, a propertyless society was possible only in Paradise, because it demanded perfection-the kind of perfection that since the Fall was beyond the reach of most of humanity. Furthermore, possessions were ethically neutral and became evil only if they gave rise to avarice. Augustine wrote that a thing ought not to be condemned because it lent itself to abuse: "Is gold not good?" he asked, responding: "Yes, it is good. But the evil use good gold for evil, and the good use good gold for good." According to Augustine, Jesus' admonitions to give up one's fortune were counsel, not command. In the world as we know it, it could be followed only by a chosen few. Augustine viewed property as a responsibility rather than a warrant for license-a kind of "trust" held by individuals for the public good. In support of their tolerance of property, Christian theologians could point to passages in the Hebrew Bible that indicated it enjoyed divine sanction. The Eighth Commandment, prohibiting theft, clearly implies the sanctity of property; the same holds true of the Tenth Commandment, which proscribes coveting "anything that is your neighbor's." Then there is the story of Abraham and Lot, who separated their pastures in order to put an end to disputes among their herdsmen and in this manner established their respective claims to a share of the land (Genesis 13). Reference was made also to the story of King Ahab (1 Kings 21), who coveted a vineyard of one Naboth and offered either to exchange it for another vineyard or to buy it. When Naboth refused to part with his land, Jezebel, Ahab's wife, concocted against him false accusations of blasphemy, which led to Naboth's being stoned to death, following which Ahab took possession of the vineyard. For this crime, God through the Prophet Elijah, threatened him and his wife with an ignominious death. The story provided an example of greed leading to sin, but it also affirmed the inviolability of property. In the Jewish legal tradition, wealth honestly acquired was considered a blessing: the rabbis forbade people to give away their wealth, or to engage in excessive alms-giving, so as not to become themselves a burden to the community. In contrast to the Christian Gospels, the Hebrew Bible extols neither poverty nor the poor. At the same time, it is filled with condemnations of injustice by the rich and injunctions of charity and assistance not only to those of one's own community but also to strangers and even animals. In fulfillment of these injunctions, Jewish communities developed a system of welfare that was probably unique in antiquity: its basis was the tithe for "the stranger, the fatherless, and the widow" as called for in the Hebrew Bible. The Catholic view of property was codified by Thomas Aquinas in the Summa Theologica. Aquinas approached the subject in the context of justice, which he defined as the "perpetual and constant will to render to each one that which is his." He conceded that in a certain sense it was "not natural for man to possess external things," because all goods belong to God and are the common property of God's children. However, drawing on Aristotle's Politics, he argued that common ownership promoted neither efficiency nor harmony but discord. To perfect himself spiritually, man had to have the kind of security that only ownership provided. Aquinas also adopted from Aristotle the idea that possessions enabled a person to engage in charity, a Christian obligation: almsgiving was an essential corollary of ownership, and the rich were morally bound to give to the poor all their superfluous wealth. Any excesses to which wealth gives rise have to be restrained by society. The general view of the patristic writers on this subject has been summarized as follows. The early church theoreticians recognized that human life, as it actually is, needs discipline, needs an order enforced by coercion. And thus they came to make a distinction between an ideal, which they think of as also the primitive condition of man, and the actual. Ideally, man, following his truest nature, obeying the laws of reason and justice ... would have needed no such coercive discipline. But, being what he is, a creature whose true instincts and nature are constantly overpowered by his lower nature, it is only by means of hard discipline that he can be kept from anarchy and disorder.... Private property ... with its enormous inequalities, they could not accept as a primitive and natural institution. In a primitive or natural state the rights of property could have been nothing more than the right to use that which a man required. But again, in face of the actual condition of human nature as it actually is, they found that a formal regulation of the exercise of the right to use was necessary. Private property is really another disciplinary institution intended to check and counteract the vicious disposition of men. Contrary to a widely held misconception, the church did not condone, let alone propagate, communism, for which reason the church fathers cannot be cited as authorities for it. As the Russian philosopher Vladimir Soloviev observed a century ago, Christians exhort their followers to give away their own wealth, whereas socialists call for the seizure and distribution of the wealth of others. The economic doctrines of the Christian churches did not go beyond the voluntary renunciation of one's own wealth. It was, therefore, not inconsistent that the church treated as heretics those groups, such as the twelfth-century Waldensians, who preached poverty and, later, the Anabaptists, who sought to impose communism. Generally speaking, "veneration of poverty" was one of the hallmarks of heretical movements, not of the established church. In the late thirteenth and early fourteenth centuries a fierce controversy broke out in the Franciscan Order between the "Spirituals," who advocated the renunciation of all possessions, and the "Conventuals," who wished to hold on to the sizable properties that the order had acquired. During the papacy of John XXII, the church crushed the Spirituals, over one hundred of whom it condemned to be burned at the stake. In a bull issued in 1323, this pope declared it a heresy to deny that Christ and the Apostles had had possessions. Six years later, in another bull, John XXII asserted that the property (dominium) of man over his possessions does not differ from the property asserted by God over the universe, which He bestowed on man created in His image. It is therefore a natural right which predates human law. The founders of Protestantism went beyond the Catholic Church's tolerance of property: both Luther and Calvin emphatically endorsed it, linking it with labor, which they regarded as a Christian duty. Luther condemned the rebellious peasants of Germany as "mad dogs" for seizing estates, saying that the Gospels did not call for making the goods of others common property and holding on to one's own but urged Christians of their free will to give up what they had. The Calvinists held even more positive views of property. Calvin wrote approvingly of industry and trade and the great profits they brought to some, rejecting the medieval prohibitions on usury and acknowledging the benefits of money and credit. It is widely recognized by historians that Calvinism did a great deal to foster the capitalist spirit. In the later Middle Ages the Catholic Church turned from defending property as a regrettable but unavoidable reality to defending it on principle. The shift occurred in reaction to assaults on the church's wealth by the secular authorities. The issue arose in an acute form at the beginning of the fourteenth century when Philip IV (Philip the Fair) of France, in need of money to finance his war with England, imposed a tax on the clergy and forbade the export of precious metals, including papal revenues. To protect clerical holdings from seizures by the crown, theologians now referred to property as an inalienable right-primarily church property, but by inference property in general. In the course of this polemic, clerical theorists formulated the doctrine, later adopted by such prominent secular writers as Bodin and Grotius, that the authority of the state, however absolute in other respects, did not extend to the property of its subjects. The argument was buttressed with references to Roman law, which was rediscovered and taught in Italian universities beginning in the early twelfth century. A prominent exponent of this new clerical theory of property was Aegidius Romanus (Colonna), a pupil of Thomas Aquinas, who argued that Philip IV did not have it in his power to appropriate the church's possessions because the rights of property antedated and transcended those of the state. The church and the supreme pontiff had lordship over all temporal things and were the ultimate owner of the world's assets. Employing feudal terminology, he asserted that kings had "superior dominion" but not the ownership of their vassals' holdings. Aegidius Romanus's opponent John of Paris maintained in defense of Philip IV that private property derived from princely grants and that the church, too, held its estates by virtue of these grants. But he concurred that property rights could not be violated, whether by the king or the pope. In these debates the influence of Roman law was clearly evident. John of Paris held that individual persons, in their individual capacities, have in themselves the right, power, and true lordship, and anyone can order, dispose, dispense, retain, alienate his property at pleasure without injury to another, since he is lord.... And, therefore, neither prince nor pope has lordship or dispensation in such things.... The dispute between the papacy and secular authorities of the late Middle Ages had the effect of firming the status of private property in that both parties to the controversy, while tracing the legal justification of ownership to different sources, agreed that it was sacrosanct, protected from the encroachments alike of the Holy See and the royal court. (Continues...) (C) 1999 Richard Pipes All rights reserved. ISBN: 0-375-40498-8 ---------------------------------------------------------------------- New York Times May 9, 1999 Nine-Tenths of the Law ______________________________________________________________ Richard Pipes on the link between property rights and rule of law. By CHARLES R. MORRIS PROPERTY AND FREEDOM By Richard Pipes. 328 pp. New York: Alfred A. Knopf. $30. Richard Pipes, a longtime professor of Russian history at Harvard, has had the satisfaction, rare among academics, of seeing his once unpopular views adopted as American policy. During the early days of Soviet-American arms limitation talks, Pipes was one of a handful of academics who continued to insist on the criminal nature of the Soviet regime. His 1977 Commentary magazine article, ''Why the Soviet Union Thinks It Can Fight and Win a Nuclear War,'' was one of the half-dozen or so most influential articles in the entire period of the cold war, and his many books on Soviet and Russian history are standards in the field. Pipes is now retired from Harvard, and his latest book is his first not specifically in his discipline. ''Property and Freedom'' is a meditation on the close connection between property rights and the development of law and individual liberty throughout the history of civilization. Pipes is massively erudite -- his source notes contain references in at least six languages -- and he has assembled a vast amount of material. But aside from a fascinating chapter on the sources of the perverse attitudes toward property and liberty in modern Russia, the book is a considerable disappointment, especially the querulous broadside against the modern welfare state with which it concludes. In Pipes's view, despite the vanquishing of Communism, ''liberty's future . . . is still at peril, although from a different and novel source. The main threat to freedom today comes not from tyranny but from equality.'' Pipes links the ''modern habit of thinking in terms of group rights rather than individual rights'' with ''Stalin's program of 'liquidating,' i.e., murdering 'kulaks,' for example, and Hitler's genocide of Jews and gypsies,'' both of which ''were justified by the notion that people are to be judged and treated on the basis not of their personal behavior but of their membership in a designated group.'' Affirmative action, it seems, is but a step toward the gulag. The modern threat to liberty, Pipes goes on, comes ''from below, from one's fellow citizens who . . . care more about their personal security than about general freedom.'' Does Pipes read newspapers? Raising a clamor that the Morlocks are taking over, in a country that has just severely limited public assistance and one in which economic inequality is increasing rapidly, seems like piling on, if not actually paranoid. The book's characteristic rhetorical device is to make an extreme statement, then immediately back off it, as if Pipes were afraid to stand up for how he really feels. So, ''abolishing welfare with its sundry 'entitlements' and spurious 'rights' . . . would go a long way'' toward resolving the social predicament, is immediately qualified by ''but such a solution is not feasible.'' More seriously, there are real holes in Pipes's argument. The proposition that property rights usually reinforce the development of a rule of law is so unexceptionable as to be platitudinous. But Pipes seems to be making a stronger argument, that absolute respect for property rights is a precondition for maintenance of liberty. He admits a number of exceptions to that rule, but does so grudgingly, as he must, for they add up to a rather different argument from the one he would like to make. The Slavic rulers of medieval Russia, most notably Ivan the Terrible, held their positions by grace of their Mongol conquerors, but only so long as they ruthlessly collected huge amounts of tribute. Over three centuries, the institutionalization of the czar's role as surrogate Robber in Chief fatally retarded the development of a nobility as a countervailing economic interest group. Russia never had a class of powerful barons like the ones who wrung Magna Carta out of King John in 1215. The consequence was the Russian ''patrimonial'' state, in which the czar could, and actually did, dispose of anyone's property virtually at whim. Catherine the Great finally granted her nobles legal rights in their property by a 1785 charter that Pipes extols as ''a revolutionary measure in the fullest and most constructive sense of the word.'' Although Catherine's reforms benefited only a tiny minority of the population, Pipes says that minority privileges are ''the most reliable way of implanting freedom and rights, because it gives rise to social groups interested in protecting their advantages.'' In the Russian case, however, there was a catch. The ''introduction of landed property,'' Pipes concedes, ''was a mixed blessing'' because it enslaved privately held serfs, or about one-third of the population. Before Catherine's reform, the serfs had accumulated real, if limited, traditional privileges, which were summarily swept away when they were made the personal property of their landlords. That seems a rather large qualification to Pipes's argument. Limited freedom for serfs was restored in the next century by reforming czars, but only by trampling on the property rights of the gentry. Pipes also conveniently ignores the case of modern Western slavery. Dred Scott surely didn't feel liberated by the Supreme Court decision that upheld his master's property rights. Nor does Pipes make any mention of the latifundista tradition in Spanish America that kept the great mass of peasantry in a state of virtual serfdom, or the destruction of Ireland in the service of the property rights of absentee British landlords. At the conclusion of an extended chapter on the development of property and freedom in England, Pipes speculates on why similar traditions did not arise throughout Europe, even though formal legal protections were roughly similar. Dutch burghers and Polish nobles, for example, enjoyed almost identical protections for property, but the Netherlands became a thriving middle-class republic, while Poland stayed sunk in the Dark Ages. Pipes never entertains the possibility that the distribution of property may be a far more important condition of freedom than the protection of property per se. Absolute deference to the property rights of the few can create private despotisms as surely as attempts to enforce absolute equality from the top can create despotisms of the state. The challenge is to tease out the balance between insuring a broad distribution of economic stakes and limiting intrusive state power. ''Property and Freedom,'' however, is an exercise in dyspepsia that is not interested in such difficult questions. DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance—not soapboxing! 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