3

Property and Necessity

Dennis Klimchuk*

In this chapter I want to explore the prospects of the idea that, in one of its instances, the doctrine of necessity is best understood to be a consequence of the foundation and scope of rights in property. The instance I have in mind is one sort of case in which a plaintiff would invoke the private law defence of private necessity, namely when she uses or consumes another’s property to save herself from peril. The idea that her right to do so is in effect a kind of property right has its roots in medieval political philosophy.1 Aquinas, for example, held that in cases of extreme need it is not strictly speaking theft for one to take another’s property because in those circumstances that property becomes one’s own.2 The version of the view I will defend here, however, is one I claim to find in Grotius. I put the attribution guardedly because my interpretation of Grotius is contestable at a few points. I will not dedicate much space to defending the claim that I’ve understood him correctly.3 My aim here is to the defend the view, not the claim that it was Grotius’s.

1. Some Conceptual Preliminaries

I am for the greater part of this chapter limiting its justificandum along two axes; in Section 5 I will suspend these limitations. First, I will consider private but not public necessity. The distinction between the two is, we will see in Section 5, quite complex. To start I’ll adopt the line drawn in the Restatement (Second) of Torts:4 private necessity is invoked by an individual seeking to protect her interests or the interests of another (s. 197); public necessity is invoked by an individual seeking to prevent a ‘public disaster’ (s. 196). By a public disaster the drafters seem to have

* This and a linked paper, cited in the chapter, descend from presentations I’ve made at the departments of philosophy at the Universities of Ottawa and Western Ontario, at the faculties of law at the Universities of Toronto and Western Ontario, at workshops on property theory at McGill and at NYU and at a workshop on private law theory at the University of Toronto. This chapter was first presented at the conference from which this volume proceeds. I have benefited a great deal from the many comments and questions I’ve received. I am particularly indebted to Sarah Bittman, Alan Brudner, James Penner, Arthur Ripstein, Henry Smith, and Ernie Weinrib.

1For an excellent brief overview see Mäkinen 2011.

2Aquinas 1265–74 vol. 38, 81, 83 (2a 2æ Q. 66 Art. 7).

meant a disaster that will affect many people. Below we will see that ‘public’ sometimes bears another sense in this context. I’ll postpone consideration of the complexities and work for now with the simplest case: a plaintiff trespasses on another’s property to protect an interest of hers. The doctrine of private necessity holds that she has a right to do so—I’ll call this the right of necessity—but is subject to what I will call the duty of repair: she must compensate the owner for any damage she might thereby cause. According to common law a second mark of public necessity is that persons acting under its authority are not subject to the duty of repair.

Secondly, unless I say otherwise, we should imagine that the sort of case we are considering is one in which what is at stake is life or limb. The Restatement and the common law5 allow that private necessity also applies when what is at stake is the plaintiff ’s realty or chattels, at least when their value exceeds—perhaps only when significantly—the cost of the damage she may reasonably foresee will be caused to the property on which she trespasses or that she uses. It is a nice question whether the justification for the life and limb cases and property cases is the same. I will suggest that though he did not address the question, for Grotius the answer would likely be that it is not and that he would be right in saying so.

I adopt these limitations in part just to simplify. The case of a person saving her life by using another’s property is I think the simplest in the sense that it is the one for which the least disagreement as to the justness of the doctrine is likely to arise. But in part the limitations reflect the kind of account I will defend. On some approaches to necessity the question of what sort of interest is at stake is arguably secondary. This might be so if one held, for example, that the normative significance of necessity is that it compromises the voluntariness of the plaintiff ’s actions (a thought more common in the criminal context). On the Thomistic-Grotian approach, however, necessity shares conceptual space with limits on property imposed by poverty. As for the distinction between private and public necessity, I will argue that the Grotian account can explain some public necessity cases and that the others are cases of necessity in a very different sense than in the private necessity cases.

Finally, a point of terminology. What I call the right of necessity is often, perhaps most commonly, referred to as a privilege.6 One has a privilege to x, on the standard Hohfeldian analysis, when one is not under a duty not to x. Certainly a plaintiff invoking private necessity has a privilege to trespass on another’s land in this sense. By using ‘right’ I want only to highlight that she has more than that. She has more than that because she also has a right that the owner not interfere with her doing so. The owner is thus under a duty to refrain from interfering.7 On this basis it seems apt to promote the plaintiff ’s entitlement to the status of a right. Perhaps this is objectionable on other grounds. Let me emphasize that all I hope to indicate by the choice of ‘right’ is this feature of the plaintiff ’s entitlement. (It is also, for what it’s worth, Grotius’s language.)

5Vincent v Lake Erie Transportation Co. 1910.

6This language was introduced by Bohlen 1926, adopted by the Restatement, and supported recently by, for example, Stevens 2007.

7See comment k to s. 197 of the Restatement, Ploof v Putnam 1910.

2. Winstanley’s Challenge

Grotius’s account of the doctrine of necessity is set in his account of property generally. Here I want to set that account in the context of what I think is a central question in early modern treatments of property. I will frame that question as a challenge posed by the Digger Gerrard Winstanley in his early writings.8 As a way of setting the stage, I will outline two other answers to that challenge, both found in Locke’s account of original acquisition. Let me emphasize that my claim isn’t that Grotius and Locke were as a matter of fact responding to Winstanley. Locke may have known about Winstanley,9 but he did not discuss him, and Grotius wrote several years before him. Nor even is my claim that the question animating Winstanley’s challenge is expressly addressed by Grotius or Locke. It is rather that the issue frames part of the background of their treatments of property and it is illuminating to ask how each answers the challenge.

The Diggers were radical egalitarians and communists who, in mid-17th-century England, occupied and cultivated a number of small tracts of waste land. They expressed in their actions the growing sentiment that it was unjust (and inefficient) that land could be held unused by the wealthy while the poor grew in number and desperation.10 The Diggers’ most prolific and celebrated spokesperson was Gerrard Winstanley. Among his writings were a series of pamphlets published as the first group of Diggers settled on a plot of land at St George’s Hill (or George Hill, as Winstanley called it) in 1649.

What I will call Winstanley’s challenge is expressed in an argument he makes in the first of these pamphlets, ‘The True Levellers’ Standard Advanced’.11 There Winstanley argues that God is ‘mightily dishonoured’ by the state of affairs in which the world is held by a few who buy and sell it amongst themselves, ‘as if he were a respecter of persons, delighting in the comfortable livelihood of some, and rejoicing in the miserable poverty and straits of others’.12 (He continues: ‘From the beginning it was not so’; I’ll turn to that part of Winstanley’s view in a moment.) A ‘respecter’ is one who is partial.13 God is dishonoured because this inequitable state of material affairs is inconsistent with our moral equality. But the problem isn’t just with the sort of material inequality that private property makes possible. It is with the

8 I would like to thank three of my students for helping me understand Winstanley and the challenge his view poses: Sarah Bittman, Michael Cuffaro, and Bo Luan.

9See Ashcraft 1986, 165 n. 145 for a review and assessment of the circumstantial evidence.

10On the Diggers and their place in the broader context of similar movements see chapter 7 of Hill 1991.

11Subtitled: ‘A declaration to the powers of England, and to all the powers of the world, shewing the cause why the common people of England have begun and gives consent to dig up, manure and sow corn upon George Hill in Surrey; by those that have subscribed, and thousands more that gives consent’. ‘The True Levellers’ Standard Advanced’ was signed by many Diggers, but we understand Winstanley to have been its author.

12Hill ed. 1983, 78.

13Hobbes characterizes an arbitrator who does not deal equally between the parties to a dispute before her as guilty of ‘respecting’ one of them, conduct which is forbidden by equity. Hobbes 1642, 3.15. In Section 3 we’ll see a similar link between equity and equality in Grotius.

institution of private property itself. On Winstanley’s account, private property is bound up essentially with relations of domination rather than their being a contingent effect of it. ‘In the beginning of time’, Winstanley says,

the great creator Reason, made the earth to be a common treasury, to preserve beasts, birds, fishes, and man, the lord that was to govern this Creation; for man had domination given to him, over the beasts, birds, and fishes; but not one word was spoken in the beginning, that one branch of mankind should rule over another.14

On Winstanley’s account, then, it follows from each of us having been created as a ‘teacher and ruler within himself ’, that is, not naturally subject to anyone else’s authority, that the world is held in common.

Winstanley’s critique of private properly is expressed through a set of robustly theological and teleological claims: the world is the way it is and we are the way we are because of ends instilled by its and our Creator; the inequality that is the fated consequence of private property is unjust because it dishonours the Creator by implying that he is partial to some and indifferent to others in creation. But I think we can extract from Winstanley’s account a metaphysically neutral challenge to private ownership, one that we may fairly ask any account of the foundations of private property to answer. The challenge is that equality, understood in a particular way, is arguably inconsistent with private property. For Winstanley our equality consists in a kind of moral independence: we are equals in the sense that no one is naturally subject to another’s authority. This sense of equality is shared by Locke and, I will argue, Grotius (and others in the early modern period, for example Kant). So they also share the foundation that forces the challenge as Winstanley understands it. The prima facie tension with equality and private property consists in the fact that in claiming ownership of, say, a bit of realty I unilaterally claim a right to exclude others from it even when I am not using it—that is, to unilaterally subject them, in this way, to my authority. But that seems inconsistent with our being equals. That is Winstanley’s challenge.15

On Winstanley’s view, this challenge cannot be met. No one can show that, or better, why, she has a special claim to a particular part of the world, to the exclusion of all others.16 One way out of the dilemma, cast this way, is to hold that title to realty doesn’t really amount to a claim to a piece of the earth. It is rather a claim against others, pursuant to an arrangement we make amongst ourselves, to have exclusive rights to use a part of our common world, under conditions and subject to limitations we all recognize. This, we will see, is part of Grotius’s view. Winstanley would reject it. We might say that on his account each of us has an inalienable right that the world be held in common.

14Hill ed. 1983, 77.

15Note that, understood this way, the claim that the world is a common treasury is not the anchor of the argument. For Winstanley this claim is a representation or perhaps consequence of our equality. In Section 3 I will argue that this is the structure of Grotius’s view as well.

16I am generalizing a point made by Winstanley in ‘An Appeal to the House of Commons’: Hill ed. 1983, 120.

Locke, too, would have rejected the idea that private property rights arise merely as a matter of a convention, but on different grounds. For Locke the point follows from his view that as soon as I use the world in a way that excludes another’s use of it—I eat an apple, say—I have made a claim of ownership. If the consent of all others was necessary before I could consume anything then ‘Man had starved, notwithstanding the Plenty God had given him’.17 And so Locke seeks a nonconventional account of the right of original acquisition. We can find two such accounts in the fifth chapter of the second volume of Two Treatises of Government. Because in the second chapter of that volume Locke argues that we are all equal in that we are subject only to the law of nature and not, by nature, to anyone else’s authority18 I think that we can regard these two accounts as attempts to answer Winstanley’s challenge on its own terms.19

Locke’s first answer is in the account for which chapter five of the second Treatise of Government is most famous: anyone may gain ownership over something in the commons by mixing her labour with it, subject to the limitations that enough and as good is left for others20 and that what she takes does not spoil before she uses it.21 We can divide this into two components: an account of the basis of original acquisition and an account of its limits. The basis of original acquisition is the mixing of one’s labour with the object of ownership. This makes an unowned thing one’s own because each of us already has property in our persons and so, Locke argues, in our labour and (therefore?) in the work of our hands. The limits are the rules that one leave enough and as good for others and that what one takes does not spoil before one uses it. This answers Winstanley’s challenge22 by anchoring the right of acquisition in a capacity each of us has and in limiting its exercise in a way that respects others’ equal entitlement to the world and its resources: we must leave others’ options, measured in a particular way,23 as they were before we appropriated and we cannot appropriate in a way that merely puts some of the world beyond anyone’s use.

Locke’s second answer24 promotes what counts as a limit to original acquisition in the first to a free-standing basis for it. ‘[H]e that leaves as much as another can make use of ’, Locke argues (we could add on his behalf ‘and as good’), ‘does as good as taking nothing at all’.25 When it does not affect anyone’s access to the world and its resources, acquisition is permissible precisely because it does not affect anyone’s

Two Treatises as defending this conception of equality and working out its institutional consequences. So though Locke did not explicitly frame his discussion of property in the state of nature explicitly as an answer to the question how private property is consistent with equality, it’s fair to say that in the broader context he represented it as being so.

20 Locke 1689b, Bk. II ch. 5 } 27.

22How well, I will not consider here.

23Just how they are to be measured is, of course, a tricky question.

24Locke does not explicitly offer this as an alternative account of the basis of original acquisition. I borrow the idea that we can treat it that way from Sreenivasan 1995, 47–50.

25Locke 1689b, Bk. II ch. 5 } 33.