This article was last modified on March 6, 2011.


James Tyrrell, Property and the Law of Nature: 1701

James Tyrrell (1642-1718) was an English author and Whig political philosopher. Tyrrell was the eldest son of Sir Timothy Tyrrell (died 1701) and Elizabeth Ussher, the only daughter of Archbishop James Ussher. His younger sister Eleanor married the deist Charles Blount. Educated at the University of Oxford, he became a barrister in 1666 and a justice of the peace in Buckinghamshire. His Patriarcha non monarcha (1681) was a reply to Robert Filmer’s Patriarcha; it also included references to Thomas Hobbes, and was also influenced by Samuel Pufendorf. A Brief Disquisition of the Law of Nature was an English abridgment of Richard Cumberland’s De legibus naturae. Bibliothetica politica was a huge compendium of Whig constitutional theory…

Tyrrell’s antiquated language makes his views on property challenging for modern readers. He says, “But from this natural Division, or Appropriation of Things, and its Necessity for the Preservation of Mankind, arises that Natural and Primitive right proceeding from Occupancy, which both Philosophers and Civilians grant to have place in the state of Nature, supposing a community of most Things: For Right is but a certain Faculty, or Power of Acting, or enjoying any thing granted us by a Law; but in this state, there is no other Law but that of Right Reason, given by GOD, concerning such Actions as are necessary for the common Good of Rational beings.” [Tyrrell: 34] The foundation of property is based on occupation, or who can claim something first, though the conquest of land should be kept in check by “right reason”.

People have “a Right to the Use and Enjoyment of any particular Thing during the time the possessor so makes use of it; for a Man hath the same Right to live tomorrow, as he hath today; and consequently hath the same Right to all the Means which are necessary for his preservation.” [Tyrrell: 35] In accordance with right reason, if a man feels that he needs a certain thing, and no one objects or has ownership of said thing, he has every right to it. So long as they are necessary for my happiness or preservation, I have a right to my house, my servant and more, and there is “no other Judge of the Means of my own Preservation but myself” [Tyrrell: 35]

Again, need is not determined by “unreasonable Passions” or “Appetites” but only “according to Right Reason, or Equity”. [Tyrrell: 36] Or, as we may say now, there is a clear difference between needs and wants. Our appetites may drive us to pursue any manner of things, but if we use our reason to determine the necessity of things, we will not be mindless beasts

If Tyrrell is correct, and the principle of right reason flows from the Law of Nature, Hobbes is wrong in his “wild Hypothesis, concerning the Natural Right of all men to all Things, that he may thereby prove a Right, in the state of Nature, in all Men, of doing whatsoever they please towards others, Necessary to their preservation; so that thence may arise a natural state of War of all Men against all.” [Tyrrell: 37] Hobbes felt that the state of nature was man against man, a perpetual state of war. Tyrrell sees people as more reasonable, less antagonistic — society arose out of civility, not for safety’s necessity.

Tyrrell, despite believing in the laws of nature, also sees what Aristotle saw about why we must have our own space and not share land. “I shall not concern myself to prove the Convenience of Civil Property, as now established in most Commonweals; nor shall I now trouble you with those Mischiefs, which Aristotle, in his Politicks, hath very well proved, would follow from a Community of Things, by reason of those unavoidable Strifes and Contentions, which would daily arise from our using the Fruits of the Earth in common.” [Tyrrell: 38]

Although he was against communal land, Tyrrell recognizes that private land should be limited. He recognizes that “there is not land sufficient to be divided amongst all the inhabitants, so as to serve to each Person’s comfortable Subsistence”. Therefore, we need “a more full and exact Division and Appropriation of the necessaries of Life, such as are land, or the use and products thereof, as Corn, Cattle, and the like, in order to the Preservation and Happiness of that Nation, or Civil Society.” [Tyrrell: 38] A division decided by fairness keeps society as a whole content. Laws based on fairness have “a greater efficacy in order to the Happiness and Preservation of that Nation” than pure law of occupancy. [Tyrrell: 39]

Not all men follow their “right reason” and instead follow their appetites. “Since no Rational Man can ever believe, that God intended the Preservation, much less the Sensual Pleasures of any one Man, as the Sole End of His Creation.” [Tyrrell: 40] God, according to Tyrrell, wants all men to be secure and does not favor the wants of one man over the needs of many. He does not play favorites. Taking more than we need amounts, essentially, to theft because it deprives another of their life. “That the taking away those necessaries of Life, which another is rightly possessed of, doth not only cause the ruine and destruction of that Person and his Family, who were thus possessed of them; but by causing a perpetual strife among mankind, will render these things uncapable of being made use of at all for their Common Good and Preservation.” [Tyrrell: 43] He continues, “That such a Strife, if prosecuted to the utmost, will certainly end in the destruction, not only of particular Persons and Nations, but of all Mankind contrary to God’s design.” [Tyrrell: 44]

The law of nature guides the division of property both in a state of nature and in civil society. There is little difference. Tyrrell believed in the virtues of Modesty/Moderation and Frugality. Moderation is a virtue because it is abstaining from using that which we don’t need, and is therefore a sort of justice. Tyrrell seems opposed to lower class taking from upper class, as this is theft, but thinks it is right for the upper class to voluntarily give up what they do not need, or for laws to encourage such practices. Laws, of course, are written by the property owners, putting the conflict of right reason versus appetite to the test.

Tyrrell was a friend and supporter of John Locke, who stayed for a time at Tyrrell’s home, at a time when he was apparently working on his Two Treatises on Government. His thinking appears to have been influential in the development of Locke’s thinking, and for a time his writings were more influential than Locke’s in the emergence of Whig thinking and policies.

Sources

Tyrrell, James. A Brief Disquisition of the Law of Nature Fred B. Rothman & Co., 1987. (originally published 1701)

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

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