Pope Francis and Larry Arnn on Religious Liberty and Property Rights

I have a subscription to Hillsdale's Imprimis. I often find it interesting and enjoyable reading. But there are other times I wonder why I even bother, seeing as how it can read like a bad Western, where the writing is so stereotypical that you know all the characters and their roles before you've even begun. The December edition, an essay on property rights and religious liberty by Larry Arnn, president of the college, fits this mold. Among the baddies are the atheists, the Labour Party, Karl Marx, the Nazis, Barack Obama, the president of France, Progressives, the secretary of Education, socialists, and the Soviets. Arrayed against them are a typical cast of goodies: Aristotle, Christianity, Hillsdale College, James Madison, and Winston Churchill.

Oddly, among the baddies, or at least allied to them, is Pope Francis. To be fair, this is what Arnn writes: "Pope Francis is one who sometimes seems to be an example of the Christian who reads the New Testament as pointing in the direction of socialism. Commerce appears, in some of his writings and speeches, to be a grubby business purely based on self-interest - maybe even on exploitation, the opposite of charity. This reading of the New Testament - which I think flawed, by the way - is why Karl Marx, although he was famously an atheist and militantly opposed to Christianity, praised Christianity in one respect: that it declaimed against private property in the name of an otherworldly denial of self." So Arnn has introduced two layers of qualification here. He acknowledges that the view he ascribes to Francis is one that is "sometimes" found "in some of his writings and speeches." Francis may put forward other views elsewhere, though they are not described. Moreover, Arnn notes that Francis "seems to" or "appears" to condemn business, thus withholding judgement of how Francis actually views it.

I don't mean to call into question Arnn's entire argument regarding property rights, religious liberty, and their essential connection, based on human nature, which is a unity of body and soul. Indeed, I affirm his general conclusions. But I take issue with Arnn's aside about Francis, and not simply as a matter of papist pride.

Firstly, it is curious to me that someone professing to defend the Christian faith would cite Madison (a man who appears to have had little interest in religion and no adult practice of Christianity) and Churchill (an Anglican of nominal practice) while dismissing Francis, leader of the world's largest Christian denomination.

Secondly, Arnn's brief comments, though qualified, substantially misrepresent Francis's views, scattered though they can sometimes seem. Francis has indeed critiqued the contemporary economy. He warned about the "unfettered pursuit of money" and cautioned that "once greed for money presides over the entire socioeconomic system, it ruins society, it condemns and enslaves men and women, it destroys human fraternity." But Francis himself noted that " we are not yet tearing one another apart." The worst excesses of the market, to which we may be tending, have not yet come upon us. Francis's most oft-quoted phrase from this address - "the dung of the devil" - is actually a quotation from St. Basil of Caesarea and a reference not to the market, but to idolatry (of which the market can become but one example).

Meanwhile, Arnn overlooks Francis's comments in defense of property rights and the market. In Laudato Si', by no means an obscure work, Francis approvingly quotes St. John Paul II's comments that "the Church does indeed defend the legitimate right to private property." The remainder of the quotation, which Francis gives, modifies our understanding of these rights, but does not overturn them: "She [the Church] also teaches no less clearly that there is always a social mortgage on all private property, in order that goods may serve the general purpose that God gave them." (For more on this, see Catechism, 2402.)

Likewise, Francis writes in the same document that "business is a noble vocation, directed to producing wealth and improving our world. It can be a fruitful source of prosperity for the areas in which it operates, especially if it sees the creation of jobs as an essential part of its service to the common good." He further explains that, "in order to continue providing employment, it is imperative to promote an economy which favours productive diversity and business creativity." Such a vision may permit, or even require, limited intervention in the market, but I am hard pressed to imagine "productive diversity and business creativity" apart from free enterprise. Elsewhere in Laudato Si', Francis writes: "Helping the poor financially must always be a provisional solution in the face of pressing needs. The broader objective should always be to allow them a dignified life through work." Although he does not specify whether such work would be found in a market or non-market economy, I do not think it absurd to read this, in light of Francis's other comments, as perfectly compatible with the market.

Indeed, this pro-market reading of Francis's comments is reinforced when Laudato Si' is read alongside the Compendium of the Social Doctrine of the Church, which notes that the free market has the "capacity to guarantee effective results in the production of goods and services. Historically, it has shown itself able to initiate and sustain economic development over long periods." Again drawing on St. John Paul, the Compendium continues, "The Church's social doctrine appreciates the secure advantages that the mechanisms of the free market offer.... 'These mechanisms 'above all ... give central place to the person's desires and preferences, which, in a contract, meet the desires and preferences of another person.'"

If we are perplexed by Francis's praise of business and strong critiques of capitalism, he clarifies that he favors actual economic freedom, not monopolistic or exploitative behavior cloaked in the language of the free market:

To ensure economic freedom from which all can effectively benefit, restraints occasionally have to be imposed on those possessing greater resources and financial power. To claim economic freedom while real conditions bar many people from actual access to it, and while possibilities for employment continue to shrink, is to practise a doublespeak which brings politics into disrepute. Business is a noble vocation, directed to producing wealth and improving our world. It can be a fruitful source of prosperity for the areas in which it operates, especially if it sees the creation of jobs as an essential part of its service to the common good.

Arnn need not agree with the version of the free market that Francis - and the larger Catholic tradition - espouses, but it is misleading to suggest that Francis advocates state socialism.

Thirdly, Arnn's treatment of Francis is odd because many of the points that Arnn raises in the context of his discussion of Madison and Churchill are points that he could just as easily make from the thought of Francis or other pontiffs. Arnn's central claim is that "human beings are an odd integrity of soul and body." He contends that Madison championed both property rights and religious liberty on the basis of his "understanding of the integrated human being." Arnn even notes that "Marx is clear-sighted about this. He understands that if you like the way the human being is organized - if you like this integrity - then you are going to have to protect it all. And if you do not like it, you are going to have to uproot it all."

Francis, following on St. John Paul II's extensive work on the meaning of human body and its relation to the soul, makes a similar case in Laudato Si', where he writes:

We urgently need a humanism capable of bringing together the different fields of knowledge, including economics, in the service of a more integral and integrating vision.... Human ecology also implies another profound reality: the relationship between human life and the moral law, which is inscribed in our nature.... Learning to accept our body, to care for it and to respect its fullest meaning, is an essential element of any genuine human ecology.

Francis is adamant that moral and religious thinking - which would include the claim to religious liberty and rights of conscious - cannot be separated from political or economic thinking - of which the right to private property, long championed by the Church, is one element.

I hope I have not come off as unduly critical of Arnn or his argument. I overwhelmingly support his goodies and oppose his baddies. And, indeed, when faced with the choice between the right and left of American politics, I overwhelmingly lean right. But that assumes a dichotomy with which I am deeply dissatisfied, a choice a prefer not to make. In a similar vein, if you can guess the conclusions of an essay while playing the intellectual equivalent of darts while blindfolded, perhaps it is time to reconsider the very terms of the discussion. We can be more insightful than this.

Excerpts from Arnn, "Property Rights and Religious Liberty," reprinted by permission from Imprimis, a publication of Hillsdale College.

The Geometric Conception of Property

Two years ago, I wrote a post comparing Aristotle and Locke's views of property, the main idea of which was that the modern Lockean view of property created a view of property that was essentially acquisitive--the owner creates the property through his labor. Under the ancient Aristotelian view, on the other hand, the owner held his land in trust--he took care of what he already had so that he could then devote his free time to politics and pass on the land to his children. The modern view naturally tends to treat the land as a commodity for use in business, while the ancient view treats land as the source of leisure. As a result of this basic change in mentality, forms of land tenure changed so that it became more readily available in commerce. For instance, in America courts have long discouraged restraints on alienation and nearly all legislatures have abolished the fee tail. This not only has made the land easier to buy and sell, but also to mortgage, thus making large-scale borrowing possible for many people of relatively modest means. The longstanding tendency in modern America has been to make land as liquid an asset as possible.

Theoretical considerations, I argued, have radically changed our views of property, but the law of unintended consequences is always at work, as witness Thomas Jefferson's introduction of sections and ranges into land measurement (see Will Hoyt's article in Front Porch Republic). Jefferson hoped to encourage local liberty by distributing property as widely as possible among a class of yeoman farmers; the pre-modern nature of Jefferson's project becomes especially clear when one notices the archaic words he borrows from Anglo-Saxon law to describe his ideal republic. However, Jefferson tried to implement this goal with a thoroughly modern means, by parceling land in a huge grid using state-of-the-art surveying technology, which spread across the Midwest after passage of the Northwest Ordinance.

As Hoyt points out, partly as a result of Jefferson's efforts, land in America came to be viewed in abstract geometric terms, as a commodity, whose value could be easily calculated in dollars and cents for sale on the marketplace. Restraints on alienation disappeared as more and more settlers wanted to be able to move on at short notice, so that today the only forms of tenure that matter are the fee simple and the leasehold. Restrictive covenants and easements, while still allowed, are generally disfavored, except for utility and railroad easements which improve a parcel's access to the modern economy. Most importantly, legally there are strict limits on the kind of mutual obligations a land owner can impose on future generations, and if there is any doubt as to the donor's intent, courts will interpret a will or trust instrument in such a way as to impose as few obligations on the donor's descendants as possible.

A recent example of the disappearance of pre-modern land tenure appeared a few months ago in Ipswich, Massachusetts (see the March 2, 2012, Wall Street Journal). The original owner of the land dictated in his will that the land was never to be sold and that the rents were to be used for the maintenance of free schools. The donor's intent was clearly to enforce mutual obligations into perpetuity, in the hope of binding the community together in one of its most important institutions, the local public school. This arrangement continued for over 300 years until a controversy arose over the trustees' management of the rents from the property, and now a court has allowed a sale of the property despite the clear instructions in the will.

Given the development in American law, it is not much of a surprise that the property will be sold and converted to a fee simple. This is simply one of the most recent victories of the Lockean view of property over a corner of the world that had resisted long after the rest of America had changed.

The Danger of Leisure

In my last post about property and leisure, I praised Aristotle for incorporating leisure into his conception of property. Property, for Aristotle, is what assures a man leisure to pursue higher callings, especially politics. The idea was that once a man was assured of a living, he would not feel the need to amass wealth beyond measure.

That tells only one side of the story, though. Given the frailty of human nature, leisure not only opens the way for higher pursuits, but also for greed (pleonexia). To see why, we may as well begin exactly where we left off, with a passage from the Politics where Aristotle argues that the best type of democracy is a democracy composed primarily of small (yeoman) farmers. The reason for this is that

owing to their not having much property they are without leisure, so that they cannot often meet in the assembly, while owing to their having the necessities of life they pass their time attending to their farmwork and do not covet their neighbors' goods, but find more pleasure in working than in taking part in politics and holding office, where the profits to be made from the offices are not large; for the mass of mankind are more covetous of gain than of honor (Bk. VI.i.1; 1318b12-18).

This is obviously an attack on acquisitiveness (pleonexia), but it also is a frank acknowledgement that leisure (or at least too much leisure) is not good for everyone or necessarily for the political community as a whole.

A more detailed explanation of this conclusion comes in Bk. IV. There Aristotle discusses the problem that many people participate in politics to get hold of the public revenue for their own private ends. If the possibilities of the citizens to abuse the government in this way is limited, the result will be that "the laws govern" (1292b41). (For example, I have heard it said that Washington, D.C., was intentionally built in a swamp, so that legislators would not stay there too long and enact new laws all the time.)

Aristotle's critique of overly active citizens leads to an interesting conclusion: Being a citizen means having the leisure and the right to participate in the framing of the laws of one's country, but being a good citizen means actually letting those laws govern. Constantly enacting new laws is a cover for naked self-interest, and it is an excess of leisure that allows citizens the chance to enact too many laws, thereby destroying the authority of the laws.

How much leisure should a society enjoy, then?

Aristotle's solution, as far as I could tell from reading the Politics, seems to be to give most free men enough to live on, but keep them busy on their small farms, and allow leisure only for the few--the aristocrats--who are worthy of higher pursuits. Whether Aristotle's solution actually works is a question for another day. But, at least Aristotle can still inject into our political discussion today some awareness of the largely forgotten issue of leisure.

Property & Leisure: Aristotle vs. Locke

There have been moments in my education when I realize that even though I spent a lot of time on a subject, I really only scratched the surface of the subject. I recently had that experience, while reading Aristotle's Politics, with the subject of property.

Like every other law student in America, I struggled through a pretty complicated course on real property in my first year. After spending a semester learning the basic concepts of property law, such as the different types of estates and co-ownership, as well as restrictions on land use (e.g., zoning and real covenants), I figured that I had a pretty good grasp on the subject. Moreover, most of these concepts are not just taught to first-year law students, but really are essential concepts for many practicing lawyers today. These concepts for the most part fit with certain theories about the nature of property which are shared by most people today and which were announced at the beginning of the course. The theory that guided discussion in my class was John Locke's labor theory of property: "Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property" (Second Treatise on Government, Chapter 5, Section 27). Locke's basic idea is that property is something man creates through his labor; what each individual contributes to a thing is what makes it his property.

But, there were times during the course when more archaic, less "enlightened" views of property made an appearance. Those concepts also tended to be the hardest to understand. One such concept was a type of estate called the fee tail (now abolished in most jurisdictions), which placed severe restrictions on which heirs in future generations could inherit the property. The fee tail's purpose was to keep large estates intact and in the family, and was used mostly by the landed classes. (The fee tail was actually the cause of the Bennets' prospective penury in Pride and Prejudice.)

The second archaic doctrine was the rule against perpetuities, which was designed to counteract the dead hand controlling the fates of estates for generations into the future. Though these rules served opposite purposes--the fee tail preserved estates by restricting heirs' ability to sell the land or name his own heirs, while the rule against perpetuities prevented land owners from restricting their heirs' powers too much--they were both evidence of a very different understanding of property. According to this older understanding, property is much more stabile, it is something that pre-exists us, that needs to be preserved by the current generation and then passed onto the next generation--it is not something each man creates anew through his labor.

This older understanding of the nature of property is first attested to, in theoretical form, as far I know, by Aristotle. In a section of the Politics where he discusses the characteristics of a democracy made up mostly of yeoman farmers, Aristotle writes that "owing to [the farmers'] not having much property [οὐσία], they are without leisure [ἄσχολος]" (Bk. VI.2.1; 1318b11), and therefore do not have much time to engage in politics. What I find intriguing--and contrary to so much of what I learned in my course on property--is that Aristotle describes property here not in terms of its origin (as Locke does), but in terms of its purpose, its end [τέλος]. Property is what is capable of making a man self-sufficient thus giving him leisure to devote himself to more important pursuits, such as politics or philosophy.

Locke and Aristotle represent two very different views of property. The fundamental distinction between Locke and Aristotle can be summarized in the distinction between the words "creation" and "trust." In a Lockean world, where property depends on man's creative labor, if man is to have any property, man must be constantly striving to create property and value, which is usually done today through commerce. This encourages, I suspect, a certain restlessness in a man's relation to his property, and perhaps also a certain acquisitiveness. Even if a man is already rich from commerce, he needs to keep trading and manufacturing; he never has anything like a landed estate that he can fall back on. For Aristotle, on the other hand, acquisitiveness (πλεονεξία/pleonexia) is explicitly condemned as a vice. While it is certainly true that a man must cultivate his property in order to attain self-sufficiency, man's labor does not, strictly speaking, create the property's value. The property's value is more like that of a trust, which needs to be protected by a prudent steward. Once the steward (trustee) does this, he can then allow himself some ease and use his leisure to pursue other, more worthy objects.

Finally, just to complicate matters: While I certainly prefer leisure to acquisitiveness, and thus prefer Aristotle to Locke in this matter, that is not the only question to consider when examining different systems of land tenure. For instance, the older system, such as England had in the Middle Ages (with the fee tail and primogeniture), tended to create a class of sons who could not inherit property. In many cases, these sons either left their families to make a living for themselves, or else many chose to stay at home but remain unmarried. It must be acknowledged, then, that each system has its advantages and disadvantages.