Blackstone’s Commentaries on the Laws of England, Book II: Of the Rights of Things commences with a brief discussion of the origin of property. Therein he states, quite rightly, that the Dominion Mandate of Genesis 1:28 is “the only true and solid foundation of man’s dominion over external things” (Ch. 1). From there he goes on to develop a theory of property with shades of Locke in it, particularly addressing the question of how property begins to be private property. Indeed he cites Locke and other thinkers of the time- Grotius and (though not by name) Hobbes- not so much as authorities but as part of explanation. The question he answers and which today considers, then, is this: “How does property because owned and privately owned?”

Locke

Locke’s theory of property is that property becomes private (rather than common) by the incorporation of work into it. This theory, as I discuss at length in this series, leads down dangerous roads. See, the problem of the theory is that it places labor (enterprise) as more important than property. Labor is the foundation and reason for property, rather than an equal. Therefore, labor must be prioritized over property, as prioritizing property is prioritizing labor-at-a-remove, due to property being based on labor

The difficulty is that property also acts as a limitation on labor. If I own a wrench, maintenance of private property requires others from inhibiting their labor by not using the wrench. Now, it could be held that on average private property maximizes labor, but at this point we’re making an efficiency argument, not one from principles (which is always a losing proposition for righteousness- conservative arguments against socialism often fail because people care about right and wrong, not maximal money). Moreover, it seems plain that if somebody else can use my wrench whenever I’m not using it, without interfering when I do want to use it, enterprise benefits, despite property rights being diluted. The result is not necessary (other principles can interfere), but it is logical. Locke’s property scheme sets up a slippery slope.

Grotius (Via Blackstone)

Hugo Grotius, according to Blackstone, held that “this right of occupancy is founded… upon a tacit and implied accent of all mankind: that the first occupant should become the owner” (Ch. 1 [punctuation mine¹]). This view evades Locke’s slippery slope only by a greater error: making private property in effect a convention of society’s agreement. While possibly this position’s adherent believed in private property as an objective existence, the question of what constituted or created private property is by this theory given a subjective answer, one which a society can change as it desires, so that property is no longer so founded. Potentially (and pragmatically, though not with perfect logical necessity), this change would include destroying all titles (ownerships) not coherent with the new constitution of property.

Scripture

The two theories Blackstone offers (and sees little distinction between) have each shown deadly flaws. If we turn to Scripture, however, we find a more excellent foundation, one Blackstone already half stated: property is founded on stewardship, on the responsibility given to men by God at Creation, handed down to us by Adam and renewed in the Christian by Christ’s dominion (1 Cor. 15:49; Col. 2:10).

In this model, a man gains property right (authority) over a part of God’s creation by entering into specific stewardship of it. This stewardship is to take responsibility for bringing forth fruit from it in relationship to God. It is distinct from labor in that labor is, like property, a means of stewardship. Labor and property are combined to produce fruit: property is the material, labor the activity, and fruit the result. For example, property is a piano, labor the skill and work of playing it, and fruit the music issuing forth. Piano and skill are both vital to the third, which is music.

Crucially, this model avoids the dangers of both previously considered theories. It does not raise property or labor higher than the other, as Locke’s theory does, for both are means to the proper end. Stewardship is not property or labor; it is a relationship with God which governs both. Property is the passive and labor the active, neither above or preceding the other. Likewise, this model sets property rights on a purely objective basis: a specific relationship with God. Assessment of particular relationships can be difficult, of course, given how we do not see all of each other, let alone all of God, but the foundation itself is objective, its moral decision invulnerable to a change in societal norms.

In more legal terms, we humans have usufruct of creation- the right to bring fruit of it and enjoy that fruit (to His glory) (Westminster Shorter Catechism, A. 1). God has the original and basic property right, the allodial² ‘simple fee,’ in effect. Humans have allodial (absolute, original) property rights in relation to each other because the strongest form of property claims we have are equal to each other, so that one cannot override another. These superlative (human) claims are stewardship claims which exclude other participants or allow them only subordinate to the original steward’s responsibility and therefore under his authority in that stewardship.

Loss of Property rights

Under this system, dispossession is possible in three ways: forfeiture; abandonment; and dereliction. Forfeiture is the simplest: under certain circumstances, misuse of something (bad stewardship) negates the person’s claim on that property. In most cases, however, humans are not given the authority to administer this form of dispossession. I say ‘most’ because all of us are poor stewards, by God’s standard (which is the one that matters) and so all our property claims are technically invalid, if He chooses to void them. The downfall of the rich man in Psalm 73 is a good example of such Divine dispossession.

In some cases, however, mankind is authorized to dispossess certain men of their property. A man who uses his property to assault another loses some property right over that property, though typically it should descend to his heir. Loss of stewardship rights in this way can be partial and qualitative, moreover, as in the case of the man who loses certain independence in the administration of his property because he persists in dumping toxic chemicals on it, to the harm of his neighbors. This dispossession by forfeiture must always be administered with great care and only by proper authorities- such as, for murder and other crimes, by the state. Or, in the case of a toddler using his toy to torment another, by the parent or parentally-authorized caretaker.

This restraint on dispossession (a restraint just as pressing in the other two species), undoubtedly has the capacity to produce economic inefficiencies, as does the human tendency to use property sub-optimally. However, in light of the fact that the people making the decisions are always sinners, given to biased or malicious choices, and in light of the impossibility of a single agent determining the maximally fruitful use of all property, any system which is more or less lax in dispossession than God’s law authorizes will be an inefficient system. God knows what works, much better than we do. Moreover, it will be a wicked system, made up of evil choices, and all the efficiency in the world isn’t worth sinning.³

Abandonment is willing divestment of property right, communicated to others in order to enact it and allow another to take up stewardship. Blackstone exemplifies it in the man who intentionally casts a jewel “into the sea of a public highway,” rather than hiding it “privately in the earth or other secret place” [punctuation mine] (Ch. 1). If I chuck a banana peel in the trashcan in a public venue, I divest myself of stewardship and thus of property right over that banana; anyone can take control of it (though, technically, the venue has a certain stewardship and thus property over it).

Blackstone’s system seems at first in agreement, allowing such divesture. However, its Lockean elements are at odds with the conclusion. See, if divesture works, it implies that the property right produced by labor can cease immediately upon labor’s cessation. If they do so, however, then property rights natively only continue for so long as the laborer is actively engaged in his work. Because property is made private mechanically, by the introduction of labor, if labor does invest with property rights, it must do so without respect for subsequent intention. Adding salt to water produces saltwater, no matter that the person ceases adding salt or decides against it being saltwater; likewise, adding labor to (common) property produces, in the Lockean concept, private property, and this must be true no matter if the laborer ceases to labor or disdains the product (private property) of his labor. Thus, divesture is impossible (and transferal possibly problematic).⁴

The stewardship model, by contrast, has no such issue of permanence or impermanence. Stewardship is a relationship with God, for which property and labor are tools. Just because one tool is not in use at the moment does not mean it ceases to be component to the project the tool is involved in; the overall work of stewardship is continuous. Even sleep is stewardship over the body. A steward may not engage in the active part of stewardship (labor) with respect to certain passive parts of stewardship (property); that does not mean he ceases to be a steward of the property.

Abandonment requires clear declaration of intent, implicit or explicit. The abandonment can be accomplished by a person with respect to themselves and God by mere intent, but it cannot be perceived by other persons or acted upon by them unless communicated. In other words, if I relinquish property right over a hamburger, until I make that relinquishment known to others, they must assume it is still my property insofar as it was my property before. The need for clarity in this communication is also a Scriptural requirement; the standards of justice in the Old Testament required that a claim must be proved by evidence proportional at least to its severity and the magnitude of the actions rising from it (Deut. 17:6). Thus, I need less clarity to trust and act in trust that somebody abandoned a burger than that they abandoned a house.

Abandonment’s principle, in sum, is the owner declaring that this particular stewardship is not his calling and that another can do a better job. It is a recognition that God gave mankind as a whole the duty of stewardship, and so another person can take on a part of the duty which God has not called me to perform. Transferal, such as in commerce, is a species of abandonment, abandonment in favor of another. It is a declaration that a specific other person shall have stewardship of the property I formerly stewarded.

Finally, we have loss by dereliction, the trickiest of the three to determine. This is abandonment by neglect. Simple non-development is not dereliction. If I have a tract of land, I can build a house on it and cultivate it; I can take walks through it for the pleasure of nature; or I can leave it alone, as a store of value. So long as I am in some way using the land, my right of usufruct (to produce and enjoy its fruit) remains. From an external perspective, therefore, property can be judged lost by dereliction only if no conceivable use is found in the person (including any possible use as an inheritance to his heirs) or (much more commonly) if he credibly has no intention to use it, present or future, even as an legacy for his children. So if I have land given to me by my ancestors which neither I nor my ancestors have ever used or made the slightest attempt to use for any purpose, that land may be judged empty by derelict. As you can see, such a claim is passing difficult to support.

From this sort of claim can issue more difficult questions, too large for today’s article, such as the proper disposal of property claimed as common (by dereliction or abandonment or never being claimed) but later discovered to be claimed by an owner not available to state his claim.

Conclusion

Property is an instrument of stewardship, of fulfilling the Dominion Mandate. As such, property and property laws are integrally under God’s authority, not that such is a surprise (Col. 1:16-17). Property, its regulation, and its use are all to be governed by God and thus by His revealed law in Scripture. Our modern refusal to do so is a great curse on us, just as their refusal to do so was a great curse upon Israel in days of old (Is. 5:1-10).

God bless.

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Footnotes

1. Blackstone used a somewhat older convention on the use of commas; the colon in the quote was originally a comma. ↩︎
2. ‘Allodial’ – absolute, original. In Blackstone, used to refer to the king’s ownership of English land, in contrast to the technically conditional ownership of other persons under common law at the time. ↩︎
3. Sinning always produces inefficiency in reaching a righteous goal, because sin obstructs righteousness (Job 14:4). If the goal is unrighteous, of course, the calculus changes, but we should already have abandoned unrighteous goals. ↩︎
4. As with much of philosophy, this problem is at least temporarily solvable with a little flexibility and some new premises, but it is a problem. ↩︎