Bryn Mawr Classical Review

"There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property." Today this sentiment of Sir William Blackstone's might seem quaint. However, when his influential Commentaries on the Laws of England were first published in 1756, property was the focus of heated debate, and had been particularly so for at least the previous century. The vexed questions were: What was the original form of property? When and why did private property arise? Based on what principles can unequal property relations be reconciled with the ideals of equality and liberty? The debate, which drew in such thinkers as Grotius, Locke, Hume and Hegel, was heated because property was a privileged site for thinking about the space for individual will, reason and action, and for defining the limits of the state and of personal responsibility. Students of political thought and legal theory have dissected the arguments quite closely.¹ But, for the most part, they have not considered very closely the classical and medieval strands of thought behind early modern thinking about property. This is the goal of Garnsey's new book. He wants to "explore the ancient 'foundational' texts concerning ideas of property and their reception up to the early nineteenth century" (1). The word "foundational" is in quotes because it is in fact Garnsey's ultimate concern to argue that the ancient texts, in particular Roman legal texts as they were interpreted by medieval canon lawyers, should be considered foundational for the development of modern notions of property rights.

Based on the 2005 Carlyle Lectures at Oxford, the book is organized in four units consisting of two chapters each. The first two chapters begin with the conventional originators of western property theory, Plato and Aristotle. They trace the reception of Plato's ideas about property in the Republic starting with Aristotle. According to Garnsey, Aristotle' presentation of his teacher's ideas in Book Two of his Politics amounts to a willful "misreading." Aristotle was clearly aware that Plato's Republic did not banish private property completely; it only forbade the ruling class from holding it. And yet Aristotle criticizes Plato as if he had proposed to banish private property from his state altogether. Garnsey finds in this move the seed of the idea (mistaken, in his view) that Plato was a critic of private property. Then he considers the idea's fortunes, from the Neo-Platonists of late antiquity to the Platonist/Aristotelian controversies of the fifteenth century. He shows how in the hands of subsequent writers like Bessarion (1403-1472) and Gemistus Plethon (d. 1452) Plato's idea about the separation between rule and property became a double-edged weapon. They allowed them to wield the authority of Plato against the ruling elite, but they also exposed them to charges of immorality because Plato was also associated with the call for the abolition of the family. In the case of Plethon, his endorsement of Plato's ideas was the excuse Gennadius needed to burn his commentaries on the Laws.

The next two chapters turn to the politics of another textual issue, the specter of a "revolutionary" Jesus that emerges from certain passages of the New Testament, in particular Acts 4:32-5:11 and Matthew 19:16-30, which seem to criticize private property. Chapter 3 considers how writers from Origen (c. 185-c. 251) to Peter Olivi (1248-1298) engaged in a discourse that combined textual with political criticism, interpreting these texts in various ways to either attack or defend the Church hierarchy. The focus here is on how each writer used these texts and others to imagine the ecclesia primitiva, or the original organization of the Church. Chapter 4 considers the interplay between this tradition of thought and the politics of monasticism from the Pelagians to the Franciscans. Some sought to follow Christ as closely as possible in the vita apostolica. They interpreted the texts in question as a call to believers to surrender everything they own and to lead a life of voluntary poverty. The existence of these individuals created tensions within the Church, which various writers, from Clement of Alexandria to Pope John XXII, sought to alleviate by means of textual and legal arguments. Garnsey calls particular attention to the legal terms that enter the debate in the thirteenth century. We begin to see legal distinctions being marshaled in order to break the textual impasse. For example, Pope Nicholas III argued that the Church was the owner, while the Franciscans had only the right of use (simplex usus facti) of whatever they consumed. Thus the Franciscans would not run afoul of their founder's ban on private property, and the Church would be shielded from the criticism implicit in Franciscan practice.

Chapters 5 and 6 survey ideas of the "state of nature" as they relate to property. Garnsey finds precursors of early modern state-of-nature theories, like those of Locke and Rousseau, in classical and Christian writers, namely Hesiod, Cicero, Seneca, Ambrose, Lactantius, and Gratian. Locke and Rousseau used the device of the state of nature as a heuristic tool in order to lay bare the essence of humanity prior to the invention of civil society. In their respective accounts of the original state, property figured as either the root of current inequality (Rousseau), or as the source of everything that is worthwhile in human life (Locke). Garnsey finds in these theorists' constructs echoes of Stoic thought about primitive humanity and of Roman jurists' preoccupation with the theory of original acquisition, which considers how things stop being "wild" and get acquired for the first time. He argues that these ideas had been fused together by early Church Fathers, such as Ambrose and Lactantius. These bequeathed to later thinkers the idea that property was originally held in common and that economic inequality is the result of the Fall. However, their inheritors did not take from them the idea that property should be equalized or that poverty needs to be alleviated. They managed to avoid that implication without jettisoning the idea of original equality by introducing the elements of consent (Grotius) or of labor (Locke).

The final two chapters turn to the question of property conceived as a "subjective right." Chapter 7 follows the lead of Brian Tierney, who argues in The Idea of Natural Rights (Emory, 1997) for the importance of the twelfth-century jurist Gratian in the development of rights theory. Garnsey underscores the contributions of Roman jurists to Gratian's work. He also follows Tierney in attacking the positions of French legal philosopher Michel Villey, who claimed that the Romans did not have a notion of subjective property rights (finding instead the first hint of subjective rights in Ockham's theory of nominalism). Indeed, the extant Roman juridical sources do not supply a clear definition of ownership. Thus, when the drafters of the Napoleonic Code sought a definition of ownership in the Roman sources they drew on a passage that had little to do with ownership. It dealt instead with the law of mandate. That Code's drafters wanted to find in the Justinian Code a definition of property that stressed the absolute control of the individual owner. Garnsey points out that the post-Justinian glossators were also uninterested in defining dominium as an individual right. Bartolus (1314-1357) appears to have been the first jurist to provide the modern definition of ownership as the right of free disposition of one's property, except as the law may prohibit. Most national law-codes have adopted this definition for their own. Garnsey acknowledges that the Romans did not define property in this way explicitly, but he argues that this is because they did not see the need, not because they would have found that definition foreign. Extant texts, he suggests, allow us to reconstruct the Roman notion of property as a subjective right that gave the individual owner freedom of control.

Finally, chapter 8 contrasts attitudes towards the notion of property as a natural or human right in Christian theology and in two documents of the eighteenth-century Enlightenment, the French Declaration of the Rights of Man and Citizen and the American Declaration of Independence. The former explicitly enshrined property as a "natural right," while in the latter Jefferson famously omitted to include the right to property alongside life, liberty, and the "pursuit of happiness." Garnsey draws an interesting contrast here. He points out that to make the right to property natural is in some ways to bring it into conflict with the right to life. What happens when a poor man is on the verge of starvation? Does his right to life override the rich man's right to exclude him from his field? Church thinkers from Basil of Caesarea to Aquinas argued that in extremis the right to property was suspended. Canon lawyers agreed but suggested that the right to property was natural, but in a secondary, "suppositious" way; thus leaving the door open to the prospect of original equality without criticizing existing property relations. Property theorists of the seventeenth century, such as Grotius and Pufendorf, and Locke, were not especially concerned with this implication. For them the rights to property, life, and liberty had different meanings which hinged on their particular political projects. The problem of a clash between different individual, subjective rights equally based on nature simply does not arise.

As should be clear from this (partial) survey of its contents, this is a wide-ranging, learned and ambitious book that is intended to appeal to a wide audience. It should interest historians of ideas, students of political thought, scholars of religion, and anyone interested in the intellectual roots of rights theory. In thought about property, Garnsey stakes out fruitful common ground for classical, Christian, and early modern legal and political texts. This is a hallmark of the history of ideas as practiced by the "Cambridge School" (the book appears in Quentin Skinner's Ideas in Context series). It is also the greatest strength in Garnsey's approach. However, this strength in Garnsey's approach is also a weakness because the texts lose some of their resonances with their contemporary concerns and contexts. With the exception of the Franciscan poverty dispute, there is only passing mention of the economic and political conflicts that circumscribed each writer's project. Greater attention to historical developments would help the general reader better appreciate the many theoretical players in Garnsey's story and their interactions with each other.² Still, the story Garnsey tells is fascinating. He shows how thinkers working within the same traditions put the same ideas and authoritative texts to very different, and in some cases diametrically opposed, uses.

1.   E.g., R. Schlatter, Private Property: The History of an Idea. Rutgers, 1951; C. B. MacPherson, The Political Theory of Possessive Individualism. Oxford, 1962; J. G. A. Pocock, "The Mobility of Property and the Rise of Eighteenth-century Sociology," in A. Parel and T. Flanagan, eds. Theories of Property. Calgary, 1979, pp. 141-166; J. Tully, A Discourse on Property: Locke and his Adversaries. Cambridge, 1980; A. Ryan, Property and Political Theory. Blackwell, 1984; J. Waldron, The Right to Private Property. Oxford, 1988; T. A. Horne, Property Rights and Poverty: Political Argument in Britain, 1605-1834. Chapel Hill and London, 1990.
2.   Schlatter's Private Property: the History of an Idea touches upon many of the same texts and traditions but contextualizes them at greater length within European political and economic history. For example, Schlatter considers the influence that sixteenth and seventeenth century radical movements, such as those of the Levellers in England and the Anabaptists in Germany, exerted on contemporary thought about property. More recently, see L. Brace, The Politics of Property: Labour, Freedom and Belonging. New York and London, 2004.