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The ethics of property

My article “Classical Natural Law Theory, Property Rights, and Taxation” has just appeared in the Winter 2010 issue of Social Philosophy and Policy. It is apparently available online for free, in both PDF format and HTML (follow the links from the table of contents). You will find in it a fairly detailed exposition of classical natural law theory and its underlying metaphysics, and an account of how certain natural rights (and certain limits on those rights) follow from natural law, of how a right to private property in particular follows from it, and of what this entails vis-à-vis taxation and related issues. This is the most up-to-date and complete statement of my current position on these topics, and supersedes my earlier writings on property and taxation. As you will see, though I have repudiated the libertarian position of some of my early publications, I am still utterly opposed to socialism, social democracy, and egalitarian liberalism. The article aims to spell out what a genuinely conservative approach to property and taxation should look like.

Comments (29)

I am a libertarian who has repudiated my earlier conservative statist position. It will be interesting to read your take on how we've swapped positions.

Professor Feser,

Have you by chance read John Milbank's essay "Against Human Rights"? It is a critique of the modern concept of rights from the perspective of Scholastic theory. Your essay looks interesting in conjunction (or, probably, opposition) with that argument.

Hi, Ed,

I've not had time to read the whole thing. Very interesting. But I did notice toward the end of Part V, you were talking not simply about Lockeans but also about Locke himself and about conceptions of human labor and human beings. You say something to the effect that if Locke (not just his followers) is consistent, he should hold that the nature of human labor and even of human beings themselves is entirely man-made, conventional, something like that. Now, since up above you had been talking about Locke's theistic grounding of human rights, I didn't understand why Locke could not simply have said that the nature of human labor and of human beings is not man-made or merely conventional but is God-made, is constituted by the plan and intentions of God in making man. What do you think about that idea?

Ed, I got about half way through (and love it so far), when I came across this beauty:

But an obligation on the part of a person A toward another person B entails a right on the part of B against A.

I really missed that. Went by a little too fast there for me. You have not defined what you mean by "right" in this context, as distinguished from the earlier meaning of "right" that is much less problematic: it is right for a triangle to have straight sides, and it is right for a human to do good and avoid evil. This new "right" is clearly a new and different concept in your exposition. Shouldn't you develop it a bit?

I often considered possible (as a classical philosophy student), and have since found some philosophers hold forth, that there is no classical validity to the notion of "a right" properly speaking. There are surely duties under the natural law, and thus it must be true that it is RIGHT to do that which you have a duty to do. That much is easy. There could readily be recognized then a correlative, like this: I have "a right" to do my duty, and therefore I have a right not to be prevented from doing my duty. But unfortunately, without something other than duty as the foundation, I don't think you can construct "a right" to do something that is not strictly a duty.

You perhaps verge in the direction needed with recognizing that the moral law lays obligations on us without necessarily giving others the right to enforce that law upon us. A "right" constructed out of this perhaps would be "a right" not to be obstructed from my choices where others have no authority to stop me. But that does seem to be just a little circular in concept, doesn't it?

And in any case, it leads at least theoretically to the ever-worrisome notion that I have "a right" to do something which, though it is not immoral in general, it is wrong for me to do given these particular circumstances , precisely because I have a right not to be obstructed from doing it by others. Unless your conceptualization of "rights" avoids this little quandary, you are will be veering on the brink of destruction theory-wise. Naturally you reject this result (as we all must): "The idea of a “natural
right to do wrong” is an oxymoron."
But I fear that without an adequate explicit development of "right" from the source "obligation", you will always be in danger of a back-handed falling into that abyss.

Maybe that would take another essay.


I haven't read the article yet (I mean to), but it seems clear to me that the statement

an obligation on the part of a person A toward another person B entails a right on the part of B against A

defines a right as the reciprocal of an obligation, its passive complement. So that (say) if I have a duty to pay my debts, reciprocally my creditor has a right to be paid. If I have a duty to love my wife, she has a right to be loved by me.

If this is the definition of a right, then you are wrong to speak of a right to do one's duty. Rather, someone else's duty to act (or not to act, e.g. not to harm or obstruct) is the correlative of my right to receive his action or not to be acted upon by him.

I haven't had a chance to read all of it yet either. This was the only part that struck me as odd:

It seems clear that the second clause of the proviso would also justify taxation for the purposes of funding some measure of public assistance for those in absolute distress who are incapable of either finding work or getting help from family members and friends. For these circumstances would seem to be relevantly similar to those in which the starving man in the woods finds himself. Bureaucratic inefficiency, fraud, and welfare dependency are potential problems here, but they are problems of practical implementation rather than moral principle.

The incidents of people genuinely starving in America and finding no one willing to give them basic assistance are quite rare. Rare enough, in fact, that it would be misguided to establish a legal right of public assistance rather than a principle that in times of emergency, a privilege of the same may be established for a time.

The danger in claiming that any man who may present himself as being in distressed has a prima facie right to assistance is that many people find themselves in these circumstances due to reasons which natural law forbids or may forbid, such as drug use, sexual immorality, violent crime, chain smoking, etc. That is a major criticism of the welfare state in practice, that it subsidized immorality and through that subsidy actually encourages immorality by taking away the painful consequences that might dissuade people from acting out their impulses.

Mike T makes a point that correlates with a rather shocking comment made to me many years ago by an alcoholic. (I would say "an ex-alcoholic," except that I know that he still struggled with it.) He said, "The cruelest thing you can do for an alcoholic is to feed him." I'm still not sure I agree with him, but it made me think.


Some here have articulated the point that Jesus spoke of charity and being judged for how we treat the least among us. I think there is almost a fear in a number of Christians, especially Catholics, that God will be wrathful for them if they fail to show charity when they should, even if the reason they failed to do so is an honest gut feeling that it would subsidize bad behavior. "Better safe than sorry" as it were.

My counter on that is that we can know with certainty that we will subsidize bad behavior if we establish a right to assistance. The fact that drug addicts know with certainty that hospitals must admit them without regard for their lifestyle or ability to pay has, at the very least, the effect of making them think "if I overdose, I just have to get to a hospital" rather than "dear God, if I overdose, that's it!" Such psychological shifts are very important to consider in cases like this.

Thanks for the pointer, Professor Feser. Looks like the entire issue is well worth a close reading. I'd be interested to hear your thoughts on any of the other papers in this issue as well.

Michael Sullivan, while a passive right to receive the obligatory action of another is an important piece in the total fabric, it can never constitute the basis (alone, that is) for a positive right to either DO something that is not simply another duty, nor a positive right to HAVE something that is not simply the result of someone else giving. But these forms or notions of "a right" are precisely at issue: A right to speak about the evils of Communism, or the fun I had at the beach; the right to assemble with people I want to assemble with; the right to marry Jane if she and I agree, and not Anne (or, worse, Pete).

I don't see any development of rights in this sense coming out of the correlation of duty. And yet it is rights in this sense that are quite the problem for the modern sense of the state.

Please don't get me wrong here: I am quite willing to go along with rights in this sense if they can be solidly rooted in proper soil. I am enough of a person of my age to feel uncomfortable saying there is no such thing as a right to free speech. I just want to see it firmly grounded.


couldn't the right to free speech be expressed as the reciprocal of the duty not to hinder others from speaking?

Michael, that's just what I don't think is adequate. Certainly if person A has a right to speak freely, then everyone else has a duty not to hinder him from speaking. But which one comes first, and which is the result of the primary one? If they are simply and absolutely to be understood as 2 co-equal halves of the same coin, and that's all there is to the right, then there is NOTHING that actually constitutes a connection to natural moral law. In order for there to be a connection, there has to be a root from either the right to speak or the duty to not hinder others that springs from some other source.

For example, one might posit that since we are social rational beings, we are not only ordered to truth of ourselves, but we are ordered to the expression of the truth that we have to others. This means that the fullest expression of our social nature includes passing on the truths we have learned. This cannot take place if we do not have the opportunity to speak to others, so natural law includes a right to speak the truths that we have learned. Then, because we have a right to express our truths, others must have a correlative duty not to impede us from expressing that truth.

This shows that what I mean by one aspect being primary, and the other consequent. The right to speech is not constructed itself out of the duty of others not to interfere, but rather directly out of our human nature.

Hello Lydia,

The trouble is that Locke is explicit that "the essences of the species [under which things fall]... are of man's making" and are ultimately the "workmanship of the [human] understanding." So he can't consistently say that they are divinely made. Sure, he says God makes all things, but apparently not their essences. And if he decided to backpedal and say that God made their essences after all, his "workmanship of the understanding" stuff would then have to be interpreted as saying that whatever the essences of things as God created them really are, what we can know are only the essences that we've constructed.

Is any of this coherent? I don't think so, but the fault is Locke's, not mine! But then, Locke was, IMO, a complete muddlehead. There are all sorts of inconsistencies between the metaphysics/epistemology of the Essay and the political philosophy of the Second Treatise. I discuss this at length in my book Locke.


I'm having trouble seeing what your objection is. Take this claim of yours: "I don't think you can construct 'a right' to do something that is not strictly a duty."

Well, why not, given that (as I am assuming) you are accepting the sort of natural law theory outlined in my paper, at least for the sake of argument? What's the problem, exactly?

One way your claim might seem correct is if in every case in which a right might seem to follow from human nature, that is because there is one specific end that we must pursue in order to fulfill that nature. For example, everyone without exception needs some form of nutrition in order to survive, and thus we have a right to seek nutrition for ourselves. But that is only because (you might hold) we also have an duty to seek nutrition. Hence the right to X correlates (you conclude) with a duty with respect to X.

But not all aspects of human life are so simple. Take the example of marriage. Given human nature, most human beings tend to flourish best when they find a spouse and start a family. Moreover, the continuation of the human race depends on this. Hence we surely have a natural right to find a spouse and start a family. But the situation is not nearly as simple as with food. For one thing, human beings naturally vary so much that there are only so many individuals of the opposite sex with whom one is likely to be compatible. And some of the ones who seem to you to be compatible with you might not see things the same way. So you need to find someone who is also agreeable to marrying you. Finding this person might take many years; indeed, it might not ever happen. So already the situation is not like food. We need to eat very regularly, and thus you might want to say we have a duty to do so. But we don't need to marry regularly -- only once in fact (unless the spouse dies), at least according to classical natural law theory. And there's surely no obligation to do it at any particular moment. You don't have to get married at 20 or 33 or 41, specifically, or at any other specific age. But surely you do still have at any of those ages a right to do so.

Then there are people who feel called to something higher than marriage -- the life of a priest or a sister, say -- and thus decide to sacrifice their right to marry for the sake of this higher end. Before renouncing it, they had a right to marry. But they did not have an obligation to do so, otherwise they could not renounce their right to do so.

Finally, there are also human beings who are simply uninterested in marriage, sex, and children. (Sometimes life-long bachelors and old maids really are just that -- neither homosexual nor too repulsive for anyone of the opposite sex to want to get near, but just uninterested.) Like everyone else, they have a right to marry, because they share the same human nature as everyone else (and as NL theory insists, it is what is true of the normal case that determines the content of the natural law). But they simply happen to have a level of romantic desire etc. that is well below the norm. Under the circumstances, they have no desire to exercise their right to marry and would make miserable anyone foolish enough to marry them. Surely they are not obligated to marry?

It seems to me, then, that your worry stems from assuming a too-simplistic account of how what is good for us follows from our nature according to natural law theory. When we take account of the nuances -- and we have to do so case by case -- we can see that there can be a right to X without an obligation to do X, but that this is itself something that follows from natural law, and not from a "right to do wrong" or anything else that might seem to threaten to lead rights-theory into a permissive moral "abyss" (as you put it). It is our nature itself -- something objective and outside our control -- that determines what "wiggle room" rights allow us, not our subjective desires.


I haven't seen Milbank's essay, but as the combox discussion has, I think, made clear, it's very hard to avoid the reality of at least some kinds of rights. For example, even if Tony's view is correct that we only have rights where we have strict duties, then we would have at least those rights. Hence it is hard to see how anyone could argue on Scholastic grounds that we don't have e.g. a natural right to worship God, since we clearly have an obligation under natural law to worship God.

It's true that the moderns have made a complete hash out of the concept of rights, but it doesn't follow that the concept itself is suspect, or even particularly modern (as scholars like Brian Tierney have shown).

Mike T,

The incidents of people genuinely starving in America and finding no one willing to give them basic assistance are quite rare.

No doubt; and it would be rarer still if the hyper-individualism of modern American life were replaced with a more family-oriented ethos of the sort natural law theory favors. The whole question of state assistance might in many concrete circumstances be moot.

But I wasn't defending any concrete policy proposals. The paper is only about sketching what NL theory requires, allows, encourages, forbids, etc. in principle. Concrete application is another question. But the general principles are hardly without consequence insofar as they automatically rule out socialist arguments, Rand/Nozick/Rothbard libertarian arguments, etc.

Edward, I agree with the idea that rights of some sort can be shown to spring forth out of our nature, by way of showing that our nature requires (with varying degrees of necessity) certain kinds of actions in order for fulfillment, without requiring some determinate action: we need food, but not this exact piece of food, so we have (a) a general obligation to eat, and (b) a right to choose what sort of food.

What I was trying to present was a call for clarification of the meaning of "right", so that we did not fall into an accidental "definition" based on your first dictum about rights: But an obligation on the part of a person A toward another person B entails a right on the part of B against A. I don't think that we want a full-blown conception of right to be rooted simply in this notion. But you don't define "a right" earlier, or at that point. Since (as I obviously agree) It's true that the moderns have made a complete hash out of the concept of rights, but it doesn't follow that the concept itself is suspect, or even particularly modern (as scholars like Brian Tierney have shown) it makes sense to carefully delineate the meaning of "right" to avoid the nonsense of modern liberal and libertarian notions of it. Well, I agree with all but the Brian Tierney part - first I have heard of him, so I have no clue what he showed, except by what you say.

But I wasn't defending any concrete policy proposals. The paper is only about sketching what NL theory requires, allows, encourages, forbids, etc. in principle. Concrete application is another question. But the general principles are hardly without consequence insofar as they automatically rule out socialist arguments, Rand/Nozick/Rothbard libertarian arguments, etc.

I know you weren't defending concrete proposals. My criticism was that you did not give enough acknowledgment of the likelihood that the aforementioned abuses are innate to the system itself and also quite likely to be extremely difficult to control.

Also, having seen the way that a number of people posting and commenting here have talked about such subjects, personal responsibility is something that I think was overlooked. For example, I fail to see why someone who is utterly destitute should be given work if it can be shown that they lost their previous job because they did things which a reasonable person would know would get them fired.

As I said, the surety of the social safety net has a subtle, but deep psychological effect of making people less concerned about their own behavior. Case in point, the drug addict who no longer things of overdosing while unable to pay for their health care as a death sentence, but rather thinks that if they can just get to the hospital, someone else will pay for them.

Hence my saying that to assign them a prima facie right to assistance is dangerous.

Hello Tony,

The definition of "right" is something I perhaps took to be obvious: To have a right to X is, in the context of ethics, to have a moral claim to it. Everyone agrees on that much, though, and precisely for that reason it isn't too helpful. What we need to know is: What sorts of moral claims over things do we have, with what qualifications, and for what reasons? I tried to give a sketch of how classical natural law theory answsers such questions, and (naturally, given the topic of the paper) devoted sustained attention only to property rights. I also started with the most obvious way in which NL theory entails rights, namely as a correlate of duties, but the rest of the paper makes it clear that (and why) that is not the only sort of right we have. I don't address every question, but of course since the paper was not on rights theory in general but on property in particular, that is hardly unreasonable. Furthermore, I do discuss in general terms the sorts of limitations NL theory puts on rights, and I try to show why in particular it rules out a natural right to do what is wrong, to use otherwise legitimate property for inherently immoral purposes, etc.

So, again, I don't see what your problem is. In particular, I don't see any grounds at all for suggesting, as you originally did, that what I've said fails to keep us from the "abyss." Again, I do say enough to explain why it doesn't.

Or maybe all you're saying is "But you didn't answer, in the context of a journal article, every possible objection someone might come up with!" Well, OK, I guess that's true...!

Re: Tierney, interested readers should take a look at his book The Idea of Natural Rights, which traces the concept of natural rights to 12th century canon law.


Again, those considerations are important, but they're just not what the paper is about. Perhaps my own interests in the paper are eccentric because of my former libertarianism, but I was more intent on explaining why the Nozick/Rand/Rothbard absolute in principle prohibition on government assistance could not be sustained than in exploring in detail whether or how such assistance might work practically. I certainly agree that the "social safety net" entails all sorts of moral hazards. There is absolutely nothing in the paper that implies otherwise, or that justifies existing programs or gives cart blanche to welfarists to start cranking out new ones. Indeed, the paper explicitly denies this.

Thanks, Ed. I do remember reading Locke on nominal and real essences many years ago, and I recall his saying that real essences are unknowable. Obviously, if he is going to apply that consistently to human beings, his position has problems and needs to be changed. Even if human essences are created and instilled by God in a way that you would consider incompatible with an A-T view (though I'm not sure how that would be), they have to be knowable for them to have any ethical implications. (I am planning a brief post on the urgency of rejecting nominalism concerning human beings. I will be honored if you post a comment on it!)


In my opinion, this is a good essay as far as it goes. But I’m not sure it goes far enough. For example, you say that man according to his essence has certain natural capacities, that actualizing these capacities constitutes his natural ends, and that under natural law theory he should be allowed to fulfill these natural ends. This is all true enough. However, you are somewhat mute on the subject of man’s ultimate end, according to which these various natural ends themselves are to be ordered.

According to Aristotle man’s ultimate end is happiness, which entails “the perfect possession of the highest good.” You, on the other hand, posit no single ultimate end, which I believe would make your argument against the Lockeans and the libertarians more convincing. To simply refer to ends and not to end seems to suggest that the goal of life is "in the living," or some such thing. This opens the door to liberterianism, although man's essence would still argue against it.


Well, again, I can't do everything in a single article. In any event, to neglect to state P is not the same as stating not-P. There is nothing in my article that has any of the implications you mention, and much that indicates why such implications would not in fact follow.

Lydia, I look forward to your nominalism post!

Just read the paper. Enjoyed it. Thanks.

Ed, I finally managed to finish the essay. Really, this is a solid, forthright exposition of the central natural law theory, and I thought it was very good. Thanks for giving us the link.

I might quibble just a bit around the edges on some of the later points, like the involvement of the state in health care and education, but not by a wide margin. And, as you say there is room for natural lawyers to amicably disagree around those margins.

As a follow-up, maybe when summer hits, you might think about developing this foundation for what (if anything) it could be made into using B16's encyclical Caritas in Veritate. Or, alternatively (and probably a much smaller project), simply carrying through with an explicit clarification of the distinction between obligations in justice and obligations in charity, social and otherwise.

Again, those considerations are important, but they're just not what the paper is about.

If I read you correctly, you stated that social welfare by the state is not inherently immoral or outside the legitimate, natural function of the state either. I would contend that the state does not, by nature, fit this role because in a normal society it is perfectly nature for intermediate institutions to provide this function. The state should instead structure its affairs in such a way as to promote charity, such as tax deductions and providing nothing more than a clearing house for the needy to find a charity that may serve them.

In my opinion, a civil government maintaining a social welfare system of its own is as unnatural as a church maintaining a standing army.

Dr Feser,

Very good read. As a former libertarian who suffers from occasional relapse it is very refreshing to see someone with similar interests and the Thomistic understanding to fill my lapses in understanding.

I do have comment regarding one statement in section 6. You state the following:
"Bureaucratic inefficiency, fraud, and welfare dependency are potential problems here, but they are problems of practical implementation rather than moral principle."

And I notice your note above about moral hazard.

I might argue that these are more than practical problems. They seem endemic and thus "natural" to the institutions that we create to administer either the taxes or the spending of the taxes. Does that affect the overall proposition that taxation is moral?

I think you help to answer this in the paragraph where you start "It is also important to keep in mind that in a society whose ethos is deeply influenced by the principles of classical natural law . . ."

But my point is that in the extreme case the moral hazard created or the inefficiency and fraud, etc are so great that in fact the institutions should be discontinued. As I write that I guess I realize that makes it a case for prudence. But I wonder if we can say that at least historically, the institutions always seem to move toward that extreme. In that case, it might make us wary and full of dread like God in granting Kingship to the Israelites, of creating these institutions in the first place. My point in this is that when we find ourselves in need of creating structures to collect and spend taxes perhaps there is some other more deeply hidden problem in our society.

You are probably well aware of the libertarian literature on non state provided "public goods".

I can't resist mentioning one example that isn't really of the fraud or moral hazard group but does illustrate that state spending has created possibly distasteful unintended consequences. The interstate highway system was created for public defense (ostensibly). It has ended up contribiting greatly to "mass man." It was never intended to wipe out local culture, but due to the ease of interstate travel, I don't know who would deny that we have seen the spread of the "mass society" over the local much more conveniently than we would otherwise have experienced. And I think that a bad thing. All this was possible due to the justified ability of the state to tax and to look out for the common defense. (Now of course I realize that I can say this now in the afterglow of the American defeat of the USSR in the Cold War, the Federal Interstate system providing some small but probably not inconsequential part in America's ability to achieve this end. But as we all know ends never justify means. And who could say what would have happened without a Federal Interstate system?)

I just have to wonder if the bureucratic problems and moral hazard, (and unintended consequences in general) are worth the attempted solution of problems by the state rather than leaving them as problems but in the hands of the individual, family, neighborhood, city, etc.

Are some problems just not worth trying to resolve given that they can only be "resolved" with an extremely bureacratic, impersonal institution? Perhaps some problems are simply irresolvable without worse consequences ensuing.

(Please note, I have left off the even worse problem of the state alwasy seeking to increase power.) But I have rambled greatly. I will stop.

Tim H, I think that the moral hazards you point out are built into to the very notion of government, (as opposed to, say, clan control by a patriarch) and get progressively worse as government includes larger territory or nation.

Since I believe that ever larger collected and unified regions of cooperation are a natural human progression (as well as inevitable), I don't think that condemning large countries and a return to the city-state is the only human solution. Instead, what is necessary is to build into the formulation of ever larger governments the principle of subsidiarity, so that the larger government views it as a fundamental constraint that it either _leave alone_ the smaller government, or assist the smaller government / entity to accomplish its own role in its own sphere, rather than take over the smaller entity's role.

Nevertheless, taxes appear to be an inherently necessary part of government as long as we have money regulating the use of wealth. Maybe the above principle of subsidiarity would, in prudence, require that all taxes be raised by the lower government first, so that it always retain a measure of control over the higher. But that too will have its problems. In fact, any and every human ordering will eventually tend toward evil, because we have evil in our souls on account of original sin and personal sin. Finding that a given way of ordering society has certain built in allowances for evil to develop is not the same as finding that such an order is a bad idea. It is merely seeing the human condition for what it is.

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