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Hugo Grotius and Property: 1625

Hugo Grotius was a Dutch scholar and jurist, today best known for his contribution to international law. He sought to explain that property as we now see it is not as it always was, and that property rights today are ultimately a convention of men, not nature or God.

As with any branch of philosophy or law, a clear definition is imperative. Grotius tries to define “property” as we understand it, and how he sees it evolving over the years.

Grotius argues that common ownership and property used to mean different things than they did in his day. He says “‘common’ (communio) meant simply the opposite of ‘particular’ (proprio); and ‘dominion’ meant the faculty of rightfully using common property” — but by his time “we call a thing ‘common’ when its ownership or possession (proprietas) is held by several persons jointly according to a kind of partnership or mutual agreement from which all other persons are excluded” — property now “means a particular kind of proprietorship (proprium), such in fact that it absolutely excludes like possession by any one else” — this makes “property” private by definition, unless otherwise stated. [Tully: 69]

Or, to say it another way, the old defintion of property meant “a number of persons were not debarred from being substantially sovereign or owners (domini) of something” — this “is quite contradictory to our modern meaning of property (dominium) … [which] now implies particular or private ownership (proprietas)” — “it was decided that things were the property of individuals. This is called ‘occupation'” [Tully: 69]

Grotius says what cannot be occupied, though, “or which never has been occupied, cannot be the property of anyone, because all property (proprietas) has arisen from occupation” — property (dominium) is now equal to exclusive possession (proprietas). [Tully: 70] As an example of something that has not been occupied, he says “the sea is common to all, because it is so limitless that it cannot become a possession of all”. [Tully: 70] Implicit in these words is the idea of “negative community” rather than “positive community” — the concept that prior to occupation, property belongs to nobody rather than to everybody in common. It is a minor distinction, but comes into play in later theories. How can one claim common property as his own if it is owned by all, for example? He would have to have the consent of all, whereas in negative community a simple claim is all that is required.

Once property is established, how is it to be treated and handled? We can say that “property, being a species of right, is for Grotius a power to use things without injustice.” [Buckle: 52]

Grotius feels that the “right of necessity to use things belonging to another is thus no more than a limit on the natural extent of property, since it captures those cases where the private owner’s advancing of his own interests infringes the rights of another. It is not to impose on the property holder a general duty to secure the welfare of the less fortunate.” [Buckle: 47] Property has limits, but not inherent duties. We cannot take what would infringe the rights of others, but there is no duty to help the needy.

Or, again, “private property is a late stage in a process of extensions to the suum by adapting and developing the original use-right. For this reason property is, in the final analysis, a system designed for the better or more effective preservation of human beings, and so cannot frustrate the use-rights of the needy. Systems of property thus have a necessary limit: they must recognize a right of necessity to use things belonging to others.” [Buckle: 52]

Does Grotius find property rights rising from natural law or convention? Indeed, we cannot say they arise from natural law, particularly if we accept that in the natural state of things nobody is the owner of anything.

Schlatter wishes to clarify that “Grotius’s theory, although it makes use of all the familiar phrases, is scarcely a theory of natural right at all. It derives the rights of property not from natural law, but from the agreement of men. It provides no rational explanation of why men should have subscribed to an agreement which took away equality of right, an agreement which legalized and perpetuated the unjust claims of those who had taken more than their share of the common property.” [Schlatter: 131]

By making property rest on convention, there may be an inherent problem. “Grotius makes the right of property rest on contract, but clearly until there is a recognised ‘meum’ and ‘tuum’ there can be no contract. Contract presupposes property. The property in a particular thing may be derived from a contract through which it has been obtained in exchange for another thing or for some service rendered, but that implies it was previously the property of another, and that the person obtaining it had a property in something else, if only in the labour of his hands, which he could exchange for it.” [Green: 214] If this is correct, then any attempt to say property arises from anything but natural right will run into this flaw.

Yet, as with other theories, even if we accept that labor creates ownership… why does it create ownership? What makes this theory any more solid than Grotius’ attempts?

Sources

Buckle, Stephen. Natural Law and the Theory of Property: Grotius to Hume Clarendon Press, 1991.

Green, Thomas Hill. Lectures on the Principles of Political Obligation and Other Writings University of Michigan Press, 1967.

Schlatter, Richard. Private property;: The history of an idea, Rutgers University Press, 1951.

Tully, James. A Discourse on Property: John Locke and his Adversaries Cambridge University Press, 1980.

Also try another article under Philosophical
or another one of the writings of Gavin.

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