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Giving It All Away? Thomas Reid’s Retreat from a Natural Rights Justification of Private Property

Published online by Cambridge University Press:  09 June 2015

K.A.B. Mackinnon
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Extract

[P]roperty must exist wherever men exist, and…the right to such property is the necessary consequence of the natural right of men to life and liberty.

Thomas Reid 1788

I proceed therefore to consider in what State or Order of Society there is the least temptation to ill conduct, and I confess that to me the Utopian System of Sir Thomas More seems to have the advantage of all others in this respect. In that System, it is well known there is no private Property. All that which we call Property is under the Administration of the State for the common benefit of the whole political Family.

Thomas Reid 1794

The few remarks on property that are found in the Essays on the Active Powers of the Human Mind of the eighteenth century Scottish “Common Sense” philosopher, Thomas Reid, have led at least one commentator to treat him as a fairly traditional advocate of the natural right to (private) property, albeit one with a concern for the very poor. In an article on William Paley and the rights of the poor, Thomas Home remarks in passing that Reid’s (and Adam Ferguson's)

major concern was to justify natural rights to property and that their interest in the poor was so little that a reader who accidentally skipped a paragraph or a page would miss all they had to say on the topic.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 6 , Issue 2 , July 1993 , pp. 367 - 389
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1993

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References

1. Thomas, Reid, Essays on the Active Powers of the Human Mind, intro. by Baruch Brody (Cambridge: Mass: M.I.T. Press, 1969) Essay V, ch. v, at 421 [hereinafter AP].Google Scholar

2. Thomas Reid, “Some Thoughts on the Utopian System” MS 3061/6, Aberdeen University Library. This manuscript and several others in the Birkwood Collection, Aberdeen University Library have recently been meticulously edited and annotated by Knud Haakonssen, and published as Thomas, Reid, Practical Ethics, Knud Haakonssen, ed., (Princeton: Princeton University Press, 1990).Google ScholarThe above quotation is from page 283. Reid’s manuscripts will hereinafter be cited by their Aberdeen University Library MS number followed, where applicable, by the page number in Practical Ethics [PE].

3. Thomas, Horne “The Poor Have a Claim Founded in the Law of Nature’: William Paley and the Rights of the Poor” (1985) 23 J. Hist. Phil. 51 at 68.Google Scholar

4. Ibid. at 68.

5. See my “Thomas Reid on Justice: A Rights-Based Theory” in Melvin, Dalgarno & Eric, Matthews, eds, The Philosophy of Thomas Reid (Dordrecht: Kluwer, 1989) at 355–67.Google Scholar

6. It is interesting to note that while John Locke asserts that “Where there is no Property [“Propriety” in early editions], there is no Injustice” (John, Locke, Essay Concerning the Human Understaanding, (London: Dent, 1961)Google Scholarat iv.3.18), he holds a wider conception of property which includes (natural) rights to life, liberty, etc., and hence for him, as for Reid, the scope justice is wider than rights to the ownership or possession of things.

7. Melvin Dalgarno, “Reid and the Rights of Man” in Stewart-Robinson, C. & Jory, D.H. eds, Man and Nature (Edmonton, Alberta: Canadian Society for Eighteenth Century Studie, 1985) at 81–94.Google Scholar

8. John, Locke Two Treatises of Government Laslett, P. eds., (Cambridge: Cambridge University Press, 1960) at Book II, paras. 25–51.Google Scholar

9. David, Hume A Treatise of Human Nature, Selby-Bigge, L.A. eds., (Oxford: Oxford University Press, 1978) Book III Part II, and An Enquiry concerning the Principles of Morals,Google Scholar Selby-Bigge, L.A. eds., (Oxford: Oxford University Press, 1975) at Section III and Appendix III.Google Scholar

10. David, Hume, Enquiry, supra, note 9, at s. Ill, pt. II, paras. 154–56.Google Scholar

11. MS 213 l/7/v/4, PE, supra, note 2 at 113. As well as natural rights, there are economical rights arising out of family relations and political rights arising out of relations within the state or political society.

12. AP, supra, note 1, at at 406-13. Joan McGregor points out that this operation of identifying justice is at two levels: the rational judgment situates the concept between favours and injuries; the sentimental reaction finds the sense of justice between the sense of gratitude and the feeling of resentment (Joan, McGregor “Reid on Justice as a Natural Virtue” (1987) 70 The Monist 483).Google ScholarAdam Smith used a similar approach but is criticised by Reid for ignoring the need for judgment and relying purely on conventional sentiments (of the impartial spectator): see my “Adam Smith on Delictual Liability” in Robin Paul, Malloy & Jerry, Evensky eds, Adam Smith and the Philosophy of Law and Economics (Dordrecht: Kluwer, forthcoming).Google Scholar

13. AP, supra, note 1 at 415.

14. For Reid’s account of the role of positive law, see text accompanying notes 64–67 infra.

15. The term “adventitious rights” sometimes appears in the literature of the Scottish Enlightenment as equivalent to “acquired rights” (for example in Francis, Hutcheson, A System of Moral Philosophy, Vol. 1 (London and Glasgow: Foulis, 1755)at 293 and 324)Google Scholar and Reid uses the term himself in the manuscripts in the same way (e.g., in MSS 213 1/7/vii/lc, 2131/8/iv/6). However in MS 2131/7/vii/l1 (PE, supra, note 2 at 208), he distinguishes between acquired and adventitious rights:

Rights may be divided 3 Ways. According to their Origin Natural 2 Acquired 3 Adventitious. 2 According to their Nature Perfect. Imperfect External. 3 According to their Objects Real Personal. Acquired Rights are Original or derived. Acquired Original Real Rights are got by Occupation. Acquired Rights are those which are consequent upon some deed of ours. Adventitious those that are consequent upon some Adventitious State as of a Master.

However he does not use this distinction consistently.

16. AP, supra, note 1 at 419.

17. Wesley Newcomb, Hohfeld Fundamental Legal Conception (New Haven: Yale University Press, 1920) at 50–58.Google Scholar

18. MS 2131/7/vii/lc, PE, supra, note 2 at 205.

19. Henry, Home, Lord, Kames, Essays on Several Subjects in Law (Edinburgh: A. Kincaid, 1732) Essay III at 101.Google Scholar

20. MS 2131/8/iv/l, PE, supra, note 2 at 149.

21. PE, supra, note 2 at 328.

22. MS 2131/7/vii/lc, PE, supra, note 2 at 204, where Haakonssen has rendered as “lowness”, I think mistakenly, what I read as “trespass”.

23. MS 2131/8/iv/l, PE, supra, note 2 at 148–49.

24. MS 2131/8/iv/5 and MS 2131/8/iii/2, PE, supra, note 2 at 149–54. Reid includes here discussion of possession, succession, mortgages, servitudes and transfer.

25. I.e. the power [assuming “facultas” was intended] of possessing, using, excluding others, disposing. MS 2131/7/vii/lc, PE, supra, note 2 at 205. See also MS 213 l/7/vii/13, PE, supra, note 2 at 211. Cf. Honoré’s list of eleven incidents of full liberal ownership in A. M. Hononré, “Ownership” in Guest, A.G., ed., Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961).Google Scholar

26. MS 2131/7/vii/lc, PE, supra, note 2 at 197.

27. AP, supra, note 1 at 420.

28. MS 2131/7/vii/lc, PE, supra, note 2 at 205.

29. MS 2131/8/iv/l, PE, supra, note 2 at 148.

30. For the Scottish Historical School see: Duncan Forbes, “Scientific Whiggism—Adam Smith and John Millar” (1954) 7 Cambridge Journal 643; Roy, Pascal, “Property and Society: The Scottish Historical School of the Eighteenth Centurye” (1938) 1 Modern Quarterly 167;Google Scholar Peter, Stein, Legal Evolution (Cambridge: Cambridge University Press, 1980)Google Scholarch. 2; Paul Bowles, “The Origin of Property and the Development of Scottish Historical Science” (1985) 46 J. of the Hist, of Ideas 197.

31. Allan, Gibbard “Natural Property Rights” (1976) 10 Noûs 77 83.Google Scholar

32. AP, supra, note 1 at 419–20. Stephen Buckle notes that Grotius employed both Seneca’s and Cicero’s versions of the metaphor: Stephen, Buckle, Natural Law and the Theory of Propert (Oxford: Clarendon Press, 1991) at 13, 36.Google Scholar

33. A proposition famously denied in the nineteenth century English cases of Bradford v. Pickles, [1895] A.C. 587 and Allen v. Flood, [1898] A.C. 1.

34. MS 2131/7/vii/lc, PE, supra, note 2 at 204, and see supra, note 19.

35. William, Paley, Principles ofMoral and Political Philosophy, Vol. 1 (London: J. Davis, 1786) at 124, Google Scholarcited in Home, supra, note 3 at 61.

36. Knud, Haakonssen “Reid’s Politics: A Natural Law Theory” (1986–87) 1 Reid Studies 10 at 12.Google ScholarSee also his “Introduction” in PE, supra, note 2.

37. SeeJames, Moore & Michael, Silverthome “Gershom Carmichael and the natural jurisprudence tradition in eighteenth-century Scotland” inGoogle Scholar Istvan, Hont & Michael, Ignatieff, eds, Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (Cambridge: Cambridge University Press, 1983).Google Scholar

38. Alan, Ryan, Property (Milton Keynes: Open University Press, 1987) at 64.Google Scholar

39. AP, supra, note 1 at 422–23.

40. Ibid. at 420.

41. Ibid.

42. Ibid. at 420–1.

43. Ibid. at 421.

44. Ibid.

45. MS 2131/7/vii/lc, PE, supra, note 2 at 205.

46. MS 2131/7/vii/13, PE, supra, note 2 at 210.

47. MS 2131/8/W/5, PE, supra, note 2 at 151.

48. MS 213 l/8/iv/5 and MS 213 l/8/iii/2, PE, supra, ra, note 2 at 150–53; MS 213 l/7/vii/12, PE, supra, note 2 at 213–14.

49. MS 2131/8/iii/2, PE, supra, note 2 at 153.

50. MS 2131/7/vii/13, PE, supra, note 2 at 210–11.

51. AP, supra, note 1 at 423–24.

52. James, Moore, “Hume’s Theory of Justice and Property” (1976) 24 Political Studies 103 at 118.Google Scholar

53. SeeJeremy, Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988) at 330–32. for a discussion of this issue.Google Scholar

54. MS 2131/7/vii/23, PE, supra, note 2 at 259. Reid has deleted “Service of” and superimposed “due to”.

55. MS 2131/7/vii/l1, PE, supra, note 2 at 207–08. Again, Reid is listing all limitations, even those with which he does not personally agree (e.g., on “Things Sacred” see text accompanying note 50).

56. John, Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 168.Google Scholar

57. Haakonssen, supra, note 2 “Introduction” at 63–64.

58. Locke, supra, note 8 at Book II, para. 33.

59. Waldron, supra, note 53 at 209–18.

60. Buckle, supra, note 32 at 158–59.

61. Locke, supra, note 8 at Book II, para. 31.

62. However, the specific evidence that I have for this view, namely Reid’s statement that Thus to occupy and use improperly those things which God has given to Men in common is an action indifferent in its self, and so far as it injures no man, nor tends to the hurt of human Society we may lawfully and rightfully do it. (MS 2131/8/iv/9, PE, supra, note 2 at 251), loses much of its force if Haakonssen is correct in rendering “improperly” as “in property”.

63. See, for example, a letter from Reid to William Ogilvie, his successor at Aberdeen, praising Ogilvie’s ideas in this area, reproduced in William Ogilvie, Birthright in Land, MacDonald, D. ed., (London, 1891) at 151–52.Google ScholarSee also Haakonssen’s “Introduction” in PE, supra, note 2 at 81.

64. AP, supra, note 1 at 432.

65. MS2131/7/vii/lb.

66. AP, supra, note 1 at 423.

67. MS 2131/8/iv/l, PE, supra, note 2 at 149.

68. George, Panichas, “Prolegomenon to a Political Theory of Ownership” (1978) 64 Archiv für Rechtsund Sozialphilosophie 333 at 343ff.Google ScholarIn a later article on Hume’s theory of property, Panichas employs the term “trusteeship system” to describe the possessor model: “Hume’s Theory of Property” (1983) 69 A.R.S.P. 391 at 398.

69. Ibid. at 349.

70. Ibid. at 351–52 (Emphasis in the original).

71. On prima facie rights see Mackie, J.L., “Can There be a Right-Based Moral Theory?” inGoogle Scholar Jeremy, Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984);Google Scholar McCloskey, H.J., “Respect for Human Moral Rights versus Maximizing Good” inGoogle Scholar Frey, R.G., Utility and Rights (Oxford: Basil Blackwell, 1985).Google Scholar

72. Honoré, supra, note 25 at 123.

73. MS 2131/7/vii/13, PE, supra, note 2 at 210.

74. MS 3061/6, PE, supra, at 284–85.

75. Ibid. at 290.

76. Ibid. at 291. The servants are to be “Servants of the State”. This scheme is, of course, open to Hume’s criticisms of merit as the basis of property rights (see text accompanying note 10 supra).

77. Ibid. at 293.

78. Ibid. at 280.

79. supra, note 52 at 118–19.