This book represents an updated and slightly revised translation of G.'s 2007 monograph Thinking about Property. The revisions can mostly be found in the notes to Chapters 7 and 8. This is a rich book covering a great amount of ground on a highly important topic; and while it suffers from overlaps and repetitions, it is a very welcome and sophisticated contribution to the history of political thought.
G., an ancient historian who needs no introduction, aims to give an account of arguments attacking and defending private property, starting out with foundational ancient texts and following their trajectory and reception up to the early nineteenth century. The book's most important contribution, according to G. himself, lies in the centrality accorded to Roman ideas, especially Roman law (p. 274): ‘Si j'ai pu faire quelque chose pour favoriser un réexamen de la contribution du droit romain à la théorie des droits, alors cet ouvrage n'aura pas été vain’.
G. begins by describing the property regime in Plato's Republic. Kallipolis is not communist: there is no common ownership of goods, not even among the ruling class; the latter merely make use in common of the produce provided to them by the farmers. The farmers in turn do own private property, on which the Guards depend – private property is thus presupposed by what amounts to a ‘régime fiscal’. Aristotle and the neo-Platonist Proclus provided influential and misleading readings of Kallipolis, interpreting it falsely as advocating the sharing of property, women and children throughout the city. G. admits the impact of the Laws' Magnesia on Aristotle and, later, James Harrington, but gives it short shrift.
Chapter 2 deals with Plato's fate in the Middle Ages. We encounter analogies between Platonic property sharing and the communal lifestyle of the first Christians as portrayed in the Acts of the Apostles. Interestingly, the Aristotelian Averroes had a fairly detailed knowledge of parts of the Republic and, astonishingly, fully embraced Kallipolis and its property arrangements, as well as its provisions concerning women. Averroes too, however, wrongly thought that property-sharing extended to all citizens. Thomas Aquinas, on the other hand, followed the utilitarian prong of Aristotle's defence of private property and supported it on grounds of efficiency and stability. Aristotle's misinterpretation of Kallipolis was taken to task in the Renaissance by the humanist Pier Candido Decembrio, while Platonists such as Marsilio Ficino and Thomas More would irritatingly keep attributing to Plato the communal sharing of everything throughout the city. The treatment of Plato seems disproportionally lengthy, because although Kallipolis was certainly very influential – Thomas More comes to mind – it was not Plato so much but rather a Roman tradition that proved influential in terms of the book's overall trajectory and focus on rights. Another, more fundamental problem insufficiently touched upon is that of the deep assumptions underlying the various theories described in the book. Is property an actual good? Unlike Plato and the Stoics, many theorists would answer in the affirmative, which should alert us to the important differences in the underlying moral and political psychologies.
Chapters 3 and 4 deal, respectively, with the way communal property sharing and renunciation of private property was argued for on the basis of the community of the first Christians at Jerusalem (Acts 2:43–5; 4:32–5:5) and with the poverty of Christ as a model. The first Christians served as a model for monasticism and common property, an influential example combined with Plato's Kallipolis by Gratian in his Decretum, yielding an ideal of the common use of everything by everyone. By contrast, the model of Jesus was used by the Franciscans to argue that they did not even enjoy common possession, let alone property rights – only factual use (usus facti). Eventually, these arguments lost out against views that emphasised charity and presupposed private property.
The next two chapters focus on ideas of how private property first arose in a natural state. Nearly everyone conceptualised the primordial state of humankind as a condition without private property. Either this condition was taken as normative, resulting in a sceptical view of the legitimacy of private property (Ambrose, the anonymous author of a treatise De divitiis, Gratian and Ockham are examples), justified only as a postlapsarian necessity, or there had to be a good justification of the introduction of private property into primordial communality. This was the path taken by many from Cicero and the Roman jurists onwards, resulting in an extremely influential natural law theory of property as a natural right, usually coupled with an account of human progress, culminating in the Scottish Enlightenment's four-stage theory. Here G.'s aim of a reconsideration of the importance of Roman law is very successful. On closer inspection it was not only the natural lawyers' arguments in favour of private property that relied heavily on Roman law accounts of the legitimate transformation of unowned things (res nullius) into private property; the influence of this tradition can be detected in Hume and other Scottish writers as well. G. shows convincingly the debt owed by the Scots, and even by Kant and Hegel, to the Roman jurists. It struck me that Locke's idea of appropriation through mixing one's labour may stem from specificatio, the (Proculian) idea that when someone makes a new thing out of someone else's material, the new thing belongs to the maker, not to the original owner (Inst. 2.1.25; Dig. 41.1.7.7).
In Chapters 7 and 8 G. seeks to demonstrate, first, that the Romans did in fact have the concept of the right to property and of individual rights in general. He subtly and convincingly teases this out from Gaius' Institutes, the Digest, Cicero, the agrarian law of 111 b.c. and another inscription, and then goes on to show that when the commentator Bartolus (fourteenth century) gives an influential definition of dominium, its seeds were present already in texts of the classical jurists Paul and Ulpian. Most importantly, G. points out that the shift from a Roman concern with remedies (actiones) to a ‘modern’ concern with rights, usually attributed to the humanist Donellus (sixteenth century), can already be found in the Digest (44.7.51: Nihil aliud est actio quam ius quod sibi debeatur, iudicio persequendi).
How did these legal rights come to be seen as natural, or human, rights? G. in Chapter 8 follows B. Tierney and situates the origins of natural rights theory in the writings of the twelfth-century canon lawyers and in the context of the Franciscan property dispute. What was usually at stake, from late antiquity onwards, was whether or not the principle of first occupancy was normatively sound – should occupatio of res nullius bestow title? The Romans said yes; Ambrose, the author of De divitiis, Basil of Caesarea and Proudhon considered it usurpation; Grotius added (tacit) consent as a criterion; Locke added the labour theory. G. ends by comparing Jefferson's Declaration and the French Declaration of Rights, pointing out that the French included property and Jefferson did not. One might add that the fourth and fifth amendments to the US Constitution did end up containing property rights (qualified by Grotius' ‘eminent domain’).
The most shocking rupture is introduced early on by Cicero: government is legitimate if and only if it protects pre-political property rights (Off. 2.73). G. mentions this, but does not give it enough weight. The proto-liberal Cicero makes do without an Epicurean contract or Aristotle's good life; justice gets redefined in terms of the protection of property rights, ready to be reduced to Aristotle's corrective justice. Distributive justice gone, this rights-centred view was later sharpened by the natural lawyers who applied technical terminology from Roman property law, culminating in an account of occupatio in the natural state, sometimes supplemented with prescription. Even those pointing to utility, rather than natural rights, such as Hume, can be found smuggling these elements of the Roman tradition into their doctrines.
Arnaldo Momigliano in his inaugural lecture at UCL said that ‘it is still safe to assume that he who does not know Roman law does not know Roman history’. In his book G. shows us that this holds for European intellectual history as well.
