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 gold, I do not wish to touch your treasures, however tainted their source. . . . For my part, I would prefer to be born in Fabricius’s hut than in Lucullus’s palace, etc., etc.4
I will draw to your attention here that when you analyze the notion of property, it is irrational and dangerous to make this word a synonym
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of opulence and in particular of ill-gotten opulence. Fabricius’s cottage is just as much an item of property as Lucullus’s palace. However, may I draw the reader’s attention to the following sentence, which sums up this entire outlook?
In defining liberty, this primary need of man, the most sacred of the rights he holds from nature, we have correctly stated that its limit lies in the rights of others. Why have you not applied this principle to property, which is a social institution, as though the eternal laws of nature were less inviolable than the conventions of mankind?
Following these introductory remarks, Robespierre establishes the principles in these terms:
Article 1: Property is the right of each citizen to enjoy and dispose of the portion of goods which is guaranteed to him by the law.
Article 2: The right to property is limited, like all others, by the obligation to respect the rights of others.5
In this way, Robespierre contrasts liberty and property. These are two rights with different origins: one comes from nature; the other is a social institution. The first is natural, the second conventional.
The common limit that Robespierre places on these two rights ought, it would seem, to have led him to think that they have the same source. Whether it is a question of liberty or property, respecting others’ rights is not to destroy or alter that right; it is to acknowledge and confirm it. It is precisely because property is a right that predates the law just as liberty does that both exist only on condition that they respect the rights of others, and the mission of the law is to ensure that this limit is respected, which means that it recognizes and maintains the very principle of it.
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Be that as it may, it is certain that Robespierre, following Rousseau’s example, considered property to be a social institution, like a convention. In no way did he link it to its true justification, which lies in work. It is the right of disposal of the portion of goods guaranteed by the law, he said.
I have no need to remind you here that through Rousseau and Robespierre the Roman notion of property has been transmitted to all our so-called socialist schools. We know that the first volume by Louis Blanc on the Revolution6 is an extravagant eulogy to the Geneva philosopher and to the leader of the Convention.
Thus, this idea that the right of property is a social institution, that it is an invention of the legislator, a creation of the law, in other words, that it is unknown to man in a state of nature, this idea, say I, has been transmitted from the Romans to us through the teaching of law, classical studies, the political writers of the eighteenth century, the revolutionaries of’93, and the theorists of organization of today.7
Let us now move on to the consequences of the two theoretical systems that I have just contrasted beginning with the jurist view.
The first step is to open a limitless field to the imagination of utopian thinkers.
This is obvious. Once we establish the principle that property takes its existence from the law, there are as many possible means of organizing production as there are possible laws in the minds of dreamers. Once we establish the principle that the legislator