THE THEORY OF PROPERTY
The recognition or institution of property is the most extraordinary, if not the most mysterious, act of the Collective Reason, an act that much more extraordinary and mysterious as, by its principle, property rejects collectivity and reason equally. Nothing is more simple, more clear than the material fact of appropriation: a corner of land is unoccupied; a man comes and establishes himself there, exactly as the eagle does in his canton, the fox in a burrow, the bird on the branch, the butterfly on the flower, the bee in the hollow of the tree or the rock. It is there, I repeat it, only a simple fact, solicited by need, accomplished by instinct, then affirmed by egoism and defended by force. There is the origin of all property. Then comes Society, Law, General Reason, Universal Consent, all the authorities, divine and human, which recognize, consecrate that usucapion, say,—you can do it without fear,—that usurpation. Why? Here Jurisprudence is troubled, lowering its head, pleading that one not question it.
“The possession of the soil is a fact that force alone makes respectable, until society takes it in hand and sanctions the cause of the holder; then, under the empire of that social guarantee, the fact becomes a Right; that right, it is property. The right of property is a social creation: the laws do not only protect property; they are what give rise to it, determine it, and give it the rank and scope that it occupies in the rights of the citizen.” (E. Laboulaye. Histoire du droit de propriété, a work awarded by the Académie des Inscriptions et Belles-Lettres, August 10, 1838.)
It is necessary to observe here that the sanction of the fact is still not property, since the possession of the soil cannot have the same character for the tenant farmer, the feudataire, the Slavic possessor, the leaseholder or the proprietor. Now, if possession is understood, marvelously, as fact and as right, it is not the same of property, of which the motives are as unknown to Mr. Laboulaye as the others.
So do not ask him how the good pleasure of the lawmaker, or of society, of what he is the agent, has been able to transform the fact into a RIGHT: Mr. Laboulaye knows nothing of it, and you declare it clear-cut. The fact posited, the right supposed, (and all of that in ten lines,) he rolls out his History, at first very interesting, of the right of property; he recounts all its vicissitudes, contradictions, corrupt practices, abuses, violences, iniquities, corruptions, degradations and transformations. Of the reason for all these things, he does not know the first word; he does not even seek it. A prudent jurist, he withdraws into a significant silence: “The appropriation of the soil,” he says to you, “is one of these facts contemporary with the first societies, that science is obliged to admit as a point of departure, BUT THAT IT CANNOT QUESTION, without running the risk of putting society itself in question.”
Powerful philosopher who does not want to discuss either fact or law, and who dares to call a social creation a purely arbitrary thing, where abuse, contradiction and violence abound, draws back to cast the responsibility for the disasters, sometimes on the presumed consent of the people, sometimes on the decrees of Providence, sometimes, finally, on the irresistible course of revolutions and the force of things! Silence on that which they do not understand and that appears dangerous to them to delve into: such is, in general, the motto of the gentlemen-laureates of the Institute.
For you reader, whom this academic hypocrisy could not please, you, proprietor, who doubtless desire for society and for yourself some guaranties a bit more serious than the elegance of phrases and the force of bayonets, you want it to be discussed, even if society itself be put in question, if you should restore to the mass what a caprice of the lawmaker would have wrongly auctioned off to you. Listen then; listen without fear, and be convinced in advanced that Truth and Justice will reward your good will.
Right is right: Law is uncertain, sometimes obscure, mysterious; and it is no small thing to be able to show what is just or unjust despite appearances. Jurisprudence is nothing other than the philosophy of Right. One is not a jurist for having acquired the erudition of the texts and the knowledge of the argot of the schools; one is not even a jurist for having learned the origins and filiation of the usages, customs and legislations, their analogies, their correlation, and the texts. One is a jurist when one knows à fond la raison of the laws, their scope and their aim; when one knows the superior, organic, political thought, that rules all; when one can demonstrate that such a law is faulty, insufficient, incomplete. And for that there is no need to be a laureate of the Academy.
Every man who reasons about the Law is a jurist, just as he is a theologian if he reasons about his faith, is a philosopher if he reasons on the phenomena of nature and the mind. One is, to a greater or lesser degree, philosopher, theologian, jurist, as one brings more or less persistence, scope and depth to the research of causes, of reasons and ends. Mr. Laboulaye has done a great wrong in reproaching Michelet et Guizot for not being jurists; they are his equals and more.
Property, psychological by its nature, by constitution a matter of Law, and, I will soon add, social by destination, is ABSOLUTE: it cannot not be so. Now, before entering into the examination of motifs, we should not one thing religiously: it is that this absolutism forms against property a prejudice,—if I may put it that way,—which has up to this moment appeared invincible.
The absolute is a conception of the mind indispensable for the advance of reasoning and the clarity of ideas; it is a hypothesis necessary for speculative reason, but that is rejected by practical reason as a dangerous chimera, a logical absurdity and an immorality.
Religion, in the first place, declares to us: sovereignty, property, sanctity, glory, power, in a word, the absolute, belongs only to God: the man who aspires to it is impious and sacrilegious. The Psalmist said, with regard even to property: “The earth is the Lord’s, and all that it contains: Domini est terra et plenitudo ejus.” Notice to the chiefs of the tribes and to the proprietors to show themselves beneficent towards the people, not miserly. As if he had said: The true proprietor of the nation of Canaan is Jehovah; you are only its managers. That idea is found at the origin among all peoples: Mr. Laboulaye is in error when he says that property is a fact contemporary with the first society. What is contemporary with the first society is momentary occupation, or possession in common: property only comes later, by the progress of liberties and the slow elaboration of the laws.
The absolute is no less inadmissible in politics. That fullness of autocracy that attracts the theologian, because it is an image of the government of God; that the people conceive and accept with so much ease, because the absolutism is in essence religious, from divine right, is precisely what everyone condemns today, and that gives the lie to the theory of the separation and equilibrium of powers.
Political economy is in the same case as politics: just as the theory of government aims to make the State come out from the regime of the absolute, so economy science, by its theory of values, credit, exchange, taxation, division of labor, etc., has for object to make the operations of industry and exchange, the facts of circulation, production and distribution, come out from the absolute. What could be more opposed to the absolute than statistics, for example, la commercial accounting, the law of population, the dispute between supply and demand?…
Do I need to say that philosophy, or study of the reason of things, is the war of reason against the absolute? And science, finally, whose first name is analysis, science is the exclusion of every absolute, since it invariably proceeds by decomposition, definition, classification, coordination, harmony, enumeration, etc., and that where decomposition becomes impossible, or distinction is stopped, where definition is obscure, contradictory or impossible, where, finally, the absolute begins again, science ends.
Metaphysics, which gives us the notion of the absolute, joins its testimony to the others, as soon as it is a question of making the absolute enter into practice, of realizing it. Try as it might, the MOI cannot appropriate the non-moi, assimilate it and merge it with its own substance; they are fundamentally separated; try to confound them, or to suppress one or the other, both are ruined, and you no longer see anything.
How then could the proprietary absolutism justify itself, and become a law? Doubtless, the moi needs a non-moi in order to sense itself; doubtless, as we have said in the beginning, the citizen needs a reality that ballasts and fixes it, on pain of fading away like a fiction. But does that prove that the non-moi belongs to the moi, and is its product; that the earth could be give to the citizen as property and absolute domain? Isn’t it sufficient that he obtains possession, usufruct, tenancy, on the condition of good administration and responsibility? This is how it has been understood, in the beginnings, by the Germans, the Slaves, etc., how it is still practiced by the Arabs.
What strengthened this prejudice, is that the Law-maker divides it.
Thus, property is defined according to Roman Right: “Dominium est jus utendi et abutendi re sua, quatenùs juris ratio patitur; domain is the right to use and abuse one’s thing, as far as the reason of Right will suffer.” — The French definition comes down to this: “Property is the right to enjoy and to dispose of things in the most absolute manner, provided that one does not make a Usage of them prohibited by the laws and the regulations.” (Code civil, art. 541) — The Latin is more energetic, perhaps more profound than the French. But take notice of one thing, one marvelous thing, that the jurists have never grasped: it is that these two definitions contradict one another, in that each sanctions a double absolutism, that of the proprietor and that of the State, two manifestly incompatible absolutisms. Now, it must be thus, and it is here we find the wisdom of the Legislator, a wisdom assuredly very few of the jurists have been in doubt up to now.
I say first that property is absolute in its nature, and, in all of its tendencies, absolutist; that is to say that nothing must hinder, limit, restrain, or condition the action and enjoyment of the proprietor: apart from this there is no property. Everyone understands this. It is what the Latin expresses by the words: jus utendi et abutendi. How then, if property is absolute, can the legislator express reservations in the name of legal reason [raison du Droit], which is evidently nothing other than the reason of the State, organ and interpreter of Law [Droit]? Who will say how for these reservations will reach? Where, with regard to property, will the legal or State reason stop? What reproaches, what criticisms can we make against property? What conclusions can we posit which reduce its absolutism to nothing? The French Code is more guarded in the expression of its restrictions; it says: “Provided that one cannot make a use of property prohibited by the laws of regulation.” But one can make an infinite number of laws and regulations, laws and regulations which, perfectly well motivated by the abuse of property, would tie the hands of the proprietor, and reduce his sovereignty—egoistic, scandalous, and culpable—to nothing.
These à priori considerations against every pretention of humanity to absolutism, are the stumbling block on which are wrecked all those who have tried to resolve the problem of the origin and principle of property. They have furnished to the adversaries of the institution some formidable arguments, to which the only response has been persecution, or else, as in the case of M. Laboulaye, silence.
And yet, property is a universal fact, if not in actuality, at least in tendency; an invincible, fixed fact, to which the legislator must sooner or later give his sanction; which is reborn from its ashes, like the phoenix, which it has been destroyed by revolutions, and which the world has seen present itself in every epoch as the antithesis of caste, the guarantee of liberty, and I would almost say the incarnation of Justice.
Such is the mystery of which we are finally going to give the explanation.