I. What is the source of private property?
Ordinatio IV, d. 15, q. 2, nn. 78–101 The origin of private property 78 Here there are four things that need to be examined: first, what the source of private property is, such that this is called mine and that yours, since this is the basis for any injustice in appropriating someone else's property and consequently of any justice in restoring it; second, how ownership, once it has become private, can be justly transferred; third, from this it will be evident what constitutes unjust possession of someone else's property or, in other words, harm to another with respect to temporal property; and fourth, in what way someone is bound to restore someone else's property.1
I. What is the source of private property?
A. First conclusion 79 Concerning the first topic, the first conclusion is this: According to the natural law or the divine law there was no private property in the state of innocence; rather, at that time all things were common.
80 This is proved from the words of the Decretum, part 1, distinction 8, chapter 1: "By the natural law all things are common to all." Cited in support of this is Augustine,
Tractates on the Gospel of John, tractate 6, n. 25: "By what law do you claim the estates of the Church? By divine law or by human law? We have divine law in the divine
Scripture, human law in the laws of the king. From what source does each person possess what he possesses? Is it not by human will?2 For by divine law The earth is the Lord's, and the fullness thereof.3,4 Therefore, it is by human law that one says, 'This house is mine,' 'This estate is mine,' 'This slave is mine.' " And in the same passage he
1 Only the discussion of the first topic is included here.
2 Reading humana voluntate (PZNQ) for the edition's iure humano, "human law" (A).
3 Psalm 23:1.
4 The edition adds Pauperes et divites nonne humana voluntate una terra portat?, "Does not one and the same earth by human will sustain both poor and rich?" (A)—a garbling of Augustine's words: "God made poor and rich of one clay, and one earth sustains poor and rich." PNQ omit the sentence altogether;
Z leaves only "One earth sustains poor and rich."
ORDINATIO IV, D. , Q. , NN. –
says, "Take away the emperor's law, and who dares to say, 'This estate is mine'?" And a bit later, "It is through the king's laws that possessions are owned." And in 12, question 1, Dilectissimis, "The use of all the things there are in this world ought to be common to all."5
There is a twofold reason for this:
First, according to right reason the use of things ought to belong to human beings in a way that conduces to peaceful dealings in society and to meeting people's needs.
And in the state of innocence having the use of things in common was more efficacious for these purposes than private property, since at that time no one would have laid claim to what someone else needed, and it would not have been necessary for anyone to wrest what he needed from another by violence. Rather, each person would claim whatever he came across first for his own need.
Also, in that way there would have been a greater abundance to meet everyone's needs than if one person's use of something were forestalled because someone else had appropriated that thing for himself.
B. Second conclusion
The second conclusion is that this precept of the natural law about having all things in common was revoked after the fall.
And rationally so, on account of the same two considerations:
First, because having all things in common would be contrary to peaceful dealings in society, since a wicked and covetous person would lay claim to more than was needful for him—and indeed would do so by doing violence to others who would want to share with him in using those common goods to meet their own needs, as we read of Nimrod, who "was a mighty hunter before the Lord,"6 that is, one who oppressed human beings.
Also, it would be contrary to meeting people's needs, since stronger fighters would deprive others of what they needed.
And for this reason the polity of Aristotle in Politics II (1260b27–1261b15), in which all things are not common, is much better—in that it is better suited to the state in which Aristotle found human beings—than that of Socrates (which Aristotle criticizes), in which all things are common.
C. Third conclusion
The third conclusion is that upon the revocation of the precept of the natural law about having all things in common, and consequently upon the granting of permission to 5 Gratian, Decretum pars 2 causa 12 q. 1 c. 2.
6 Genesis 10:9.
THE ORIGIN OF PRIVATE PROPERTY
appropriate and make private what had up to that point been in common, nothing was actually made private, either by the natural law or by divine law.
88 That nothing was made private by divine law is proved by the passage of Augustine quoted above, "By what law," etc. [n. 80].
89 That nothing was made private by the natural law seems probable because it does not seem that the natural law determines to opposites, and in the state of innocence7 it determined that all things were to be held in common.
90 Someone might perhaps say that the proposition in the Institutions, "On the distinction of property,"8 Ferae, bestiae—"What belongs to no one is granted to the one who has it in his possession"9—belongs to the natural law. But even granting that this proposition10 should occur to one as probable and obvious as soon as one had apprehended naturally that things are to be made private, it is still more reasonable to say that it does not belong to the natural law, but rather to positive law. From this it follows that the first division of goods into private property was made by some positive law.
D. Fourth conclusion 91 Therefore, we need to see how such a positive law can be just, so that this division can be just.
92 Let this, then, be the fourth conclusion: a just positive law requires prudence and authority in the legislator: prudence, so that he dictates in accordance with right reason what ought to be instituted for the community; and authority, because 'law' is said from 'binding' (lex dicitur a ligando), and a judgment on the part of a prudent man does not bind either the community or an individual if the prudent man is not in charge of anyone.11
E. Fifth conclusion 93 Now it is clear enough how one can have prudence for thinking up just laws. But as for how there can be just authority, which is required along with prudence for a just law, that brings us to our fifth conclusion: there are two kinds of rulership or authority, paternal and political, and two kinds of political authority, in one person and in the community.
7 "in the state of innocence" represents in natura humana—literally, "in human nature," but the sense is clearly "in the state of human nature as originally created."
8 Iustiniani Institutiones II c. 1 n. 12.
9 Reading Quod nullius est occupanti conceditur (PZNQ) for the edition's Quod nullius est in bonis, occupanti conceditur (A).
10 "this proposition" is simply illa, "this." A note in the edition instructs us to read it as "this natural law," but Scotus cannot be saying that "this natural law . . . does not belong to the natural law."
11 Reading si nulli praesideat (PZN) for the edition's si nullus praesideat (A), "if no one is in charge."
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The first, paternal authority, is just in virtue of the natural law, by which all sons and daughters are bound to obey their parents. Nor has this been revoked by any positive law, either of Moses or of the Gospel; rather, it has been confirmed.
By contrast, political authority, which is over persons not of one's own household, whether such authority resides in one person or in the community, can be just in virtue of common consent and the choice of the community itself.
Paternal authority has to do with natural descent, even if [the members of the family are] not living together in civil society.
Political authority has to do with those who live together, no matter if they are not connected with one another by any kinship or closeness. For example, if certain unrelated persons should come together to build a city and dwell in it, and they see that they cannot be well-governed without some authority, they could agree among themselves to entrust the community either to one person or to the community itself— and if to one person, then either to him alone (and then his successor would be chosen in the same way that he was) or to him and all his heirs. And both kinds of political authority are just, because someone can justly submit himself either to one person or to the community in things that are not contrary to the law of God and in which he can be better directed by the one to whom he submits than he can by himself.
So we have a complete account of how a just positive law could be established: by someone who has prudence either in himself or in his counselors and, along with this, has just authority in one of the ways discussed in this conclusion.
F. Sixth conclusion
From these claims follows a sixth conclusion: the first division of property to various owners could be just in virtue of a just positive law, whether established by a father or by a ruler exercising rule justly or by a community making rules and governing itself justly.
And this is how it likely came about. After the flood, either Noah divided the lands among his sons, and each was to possess his own land either for himself or for his children and heirs, or else they agreed among themselves to divide the lands, as we read about Abraham and Lot in Genesis 13:8–9. For Abraham let Lot choose which part he wanted, and Abraham took what was left.
Alternatively, a law was promulgated by the father, or by someone chosen by them as ruler, or [by someone chosen] by the community, to whom the community itself entrusted that authority. This law was, or could have been, that things not in anyone's possession at that time would belong to whoever first took possession of them; and then afterward they scattered over the face of the earth, and one person took possession of one tract of land and another took possession of another.