It is a vast and fundamental one. The answer to it is of the highest concern to society, something you will be convinced of, I hope, once I have compared the origins and effects of the two opposing theoretical systems.
Economists consider that property, like the person, is a providential fact. The law does not give existence to one any more than to the other. Property is a necessary consequence of the constitution of man.
In the full sense of the word, man is born a property owner, since he is born with needs whose satisfaction is essential to life, with organs and faculties whose exercise is essential to the satisfaction of these needs. These faculties are merely an extension of the person, and property is just an extension
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of these faculties. To separate man from his faculties is to make him die; to separate man from the product of his faculties is once again to make him die.
There are political writers who are greatly preoccupied with finding out how God ought to have made man. For our part, we study man as God has made him. We ascertain that he cannot live without satisfying his needs, that he cannot provide for his needs without work, and that he cannot work if he is not certain of applying the fruits of his work to his needs.
This is why we consider that property is a divine institution and that its safety and protection are the object of human law.
It is so true that property predates the law that it is acknowledged even by primitive people who have no laws or at least no written laws. When a savage has devoted his work to building himself a hut, no one disputes his possession or ownership of it. Doubtless another savage who is stronger than he can drive him out but not without angering and alarming the entire tribe. It is actually this abuse of strength that gives rise to association, agreement, and the law, which places public force in the service of property. Therefore the law arises out of property, a far cry from property arising from law.
It can be said that the principle of property is even recognized by animals. The swallow tends her young family with care in the nest she has built with her own efforts.
Even plants live and thrive by assimilation, by appropriation. They appropriate substances, the elements of air and salts that are within their reach. You have only to interrupt this phenomenon for them to dry up and die.
In the same way, men live and develop through appropriation. Appropriation is a natural and providential phenomenon that is essential to life, and property is only appropriation that has become a right through work. When work has rendered assimilable and appropriable substances that were not so, I really do not see how it can be claimed that, in law, the phenomenon of appropriation has to be attained for the benefit of an individual other than he who has carried out the work.
It is in view of these primordial facts, necessary consequences of the very constitution of man, that the law intervenes. Since the aspiration toward life and development may induce a strong man to despoil a weak one, thus violating the rights of production, it has been agreed that the strength of all would be devoted to the prevention and repression of violence. The purpose of the law is therefore to ensure respect for property. It is not property that is conventional but law.
Let us now seek the origin of the opposing theoretical system.
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All of our past constitutions proclaimed that property is sacred, which appears to assign to our coming together as a society the purpose of the free development either of individuals or of particular associations by means of work. This implies that property is a right that predates the law, law’s only objective being to guarantee property.
I wonder, however, whether this declaration has not been introduced into our charters instinctively, so to speak, by virtue of catchwords, of language spoken long ago, and above all I wonder whether it is at the root of all social convictions.
Now, if it is true, as people say, that literature is the expression of society, doubts may be raised in this connection, since it is certain that never have political writers, after having respectfully saluted the principle of property, so oft en called for the intervention of the law, not in order to have property respected but to amend, alter, transform, fine-tune, weigh down, and organize property, credit, and labor.
Now, this supposes that an absolute power over people and property is attributed to the law and consequently to the legislator.
This may distress us but it should not surprise us.
From where do we draw our ideas on these subjects, especially our notion of law? In Latin books and in Roman law.
I have not studied my Roman law, but it is enough for me to know that this is the source of our ideas to be able to assert that these ideas are erroneous. The Romans had to regard property as purely conventional, a product and an artificial creation of the written law. Obviously, the Romans could not, as political economy does, go back to the constitution of man and perceive the relationship and necessary links between these phenomena: needs, faculties, work, and property. This would have been a suicidal error. How could they, who lived by pillage, all their property being the fruit of plunder and their means of existence based on the labor of slaves, have brought into their legislation, without shaking the foundations of their society, the notion that the true title of property was produced by work? No, they could neither say this nor think it. They had to have recourse to the following empirical definition of property: jus utendi et abutendi,2 a definition that relates only to effects and not to causes or origins, since they were clearly obliged to keep the origins dark.
It is sad to think that the science of law in our country and in the nineteenth
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century is still at the level of ideas that the presence of slavery must have inspired in the classical world, but there is an explanation for this. The teaching of law is a monopoly in France, and monopoly rules out progress.
It is true that jurists do not mold the entire range of public opinion, but it has to be said that university and church education is a marvelous preparation for the young people of France to receive the erroneous notions of jurists on these subjects since, as though the better to make sure of this, for the ten finest years of our life, it plunges us all into this atmosphere of war and slavery that enveloped and permeated Roman society.
Let us not therefore be surprised to see reproducing itself in the eighteenth century this Roman idea that property is a mere convention and a legal institution, that far from law being a corollary of property, it is property that is a corollary of law. We know that according to Rousseau not only property but also society as a whole was the result of a contract, an invention originating in the mind of the legislator.
“Social order is a sacred right which forms the basis of all the others. However, this right does not come from nature. It is therefore based on conventions.”3
Thus, the right that is the basis of all the others is purely conventional. Therefore property, which is a subsequent right, is also conventional. It does not come from nature.
Robespierre was imbued with the ideas of Rousseau. From what the pupil had to say on property, we can recognize the theories and even the form of oratory of the master.
Citizens, I will first of all put before you a few articles which are necessary to complete your theory of property. Let no one be alarmed by the use of this word. You souls of mud, who esteem only
