Mormons and Markets, I: Property

Embedded in the ten commandments are at least two injunctions having to do with property, which makes it one of the main subjects of the Decalogue and presumeably of central concern for the Gospel. We are told both that we should not covet that which belongs to another and that we should not steal that which belongs to another. These seem like simple and rather obvious ethical precepts, but it turns out that the concept of property is anything but simple. Consider the simple question of what constitutes theft. Black’s Law defines larceny as “the unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently.” Notice that theft consists not simply of taking someone’s stuff away and keeping it, but doing so unlawfully. In other words, stealing cannot be define purely in terms of action, but always requires norms.

Consider the ancient law of gleaning. Under the law revealed to Moses on Sinai, it was unlawful for a farmer to harvest the crops in the corners of the field or to gather the grain scattered on the ground during the harvest. These crops had to be left for the poor to gather, and they had the right to do so regardless of the wishes of the land owner. Indeed, the rule extended even farther, as the law forbade the muzzling of oxen in the field. In other words, an ox had the right to eat what grain he could get as he was in the traces. None of this was regarded as theft.

The United Order contains a similarly nuanced attitude toward property. One one hand, there are sweeping claims about how all things belong to the Lord and we hold them only as stewards for Him. Yet when the Saints in Missouri structured their inheritances under the law of consecration as contracts, they were rebuked by the Prophet Joseph. An inheritance was a parcel of property that was given back to a member after they had deeded all that they owned to the Church. By structuring the inheritance in terms of a contract, the leaders in Missouri sought to maintain control over the property after it was deeded to the inheritor, placing conditions on its use and providing for reversion of ownership to the Church in the event of apostasy, etc. By insisting that inheritances be structured as deeds rather than contracts, the Prophet Joseph was insisting that the inheritances be structured so that the inheritors gained full legal rights in their inheritances, free of any legal oversight from the Church.

Historically, there have been three main ways in which property has been understood. First, there is a utilitarian argument. The creation of private property rights solves certain economic problems — most notably the so-called tragedy of the commons — and the contours of our property rights are set by the functional, economic purposes to which it is put. Second, there is a liberal argument. Property, so the claim goes, is an extension and protection of individual autonomy. On this view, human freedom is a fragile thing, constantly threatened by social or political forces. The sanctity of property provides a sphere in which the individual can exclude these collective forces and live as he or she sees fit. Property in a sense becomes the locus of freedom. Finally, there is the view of property as a nexus of social obligation. The most dramatic example of this is the feudal land law. Under this system the way in which one owned property defined ones rights and obligations within an integrated social hierarchy. One who held their land “in knight’s service” had certain military and financial obligations to the lord “from whom” he held the land, while at the same time his property “in knights service” gave him claims on the lord for protection and other assistance. The web of reciprocal rights and obligations tied to land extended from serfs at the bottom all the way up to the king at the top, who held his land in service to God.

To the extent that the Gospel, especially the detailed rules with regard to property that it has promulgated at one time or another, teaches us anything it suggests that none of these views is absolute. The law of gleaning identifies property as a point of obligation to the poor and to the dumb and laboring beasts. The law of consecration and stewardship seems concerned with preserving a private sphere of freedom, even within the integrated sphere of inheritances. Finally, in all of their experiments in communal economics, the 19th century Mormons struggled with specifying property rights in such away as to overcome economic difficulties so that God’s people could enjoy the bounty and prosperity of Zion.

[Note: This is the first in a series of meandering posts on Mormonism and Markets. More to follow. Brace yourselves.]

25 comments for “Mormons and Markets, I: Property

  1. Jonathan Green
    May 12, 2005 at 10:35 am

    Thanks, Nate. For some reason, I would never willingly choose to read about theories of property, but when you place it in a context that is familiar and significant for me, it becomes quite interesting and enlightening. I’m looking forward to the next installment.

  2. Adam Greenwood
    May 12, 2005 at 10:48 am

    There’s also the classical view of property, in which ownership is understood as a way of promoting virtue (roughly, because people suffer the consequences of their acts). This might fit, though uneasily, in your liberal conception of property.

    Finally, your first two property justifications seem instrumental (property leads to efficiency, property leads to liberty). What about the rights-based view I’ve encountered among some libertarians, and I think in Locke (and, oddly enough, in a papal encyclical) that one has an inherent right to one’s labor (not for any reason, one just does) and that one therefore owns by right the fruits of one’s labors? Do you think there are any strands of this in Mormonism? Or has King Benjamin effectively shut that down by pointing out that the notion that we even own ourselves, our talents and our labors, is silly? We owe it all to God.

  3. Frank McIntyre
    May 12, 2005 at 10:51 am

    Nate, I think that you have hit the right spot to start thinking about some of the cool issues that arise in public policy. It would seem very useful to study how God and His representatives think about property rather than only how a bunch of political/legal philosophers think about property. You seem to have stopped your search with the mid-19th century, but I imagine, given the time, one could cull a number of interesting thoughts on preperty rights from modern (20th century) Church leaders. Or perhaps you looked and could not find any? And there are some bits about property in D&C 134.

    And yes, I would agree that all three views of property have merit, though for the last one I would think the chief “social” responsibility would be one to God since we are his stewards. Of course, insofar as government is instituted of God then it is reasonable that an obligation to God extends to an obligation to government. Just as an obligation to God entails an obligation to one’s fellow man.

  4. May 12, 2005 at 10:56 am

    I’ll stick with the labor theory of value, with property as a right. Locke & Marx had the right idea.

  5. Nate Oman
    May 12, 2005 at 10:58 am

    On the Lockean view, I have often thought that perhaps Mormon theology entails that God is ultimately a Lockean. After all, how do we account for the fact that he owns the world? Certainly not on the ground that he is the ontological fount of its existence. No can do, as matter is co-eternal with God. So what is the answer?

    Well, God took matter unorganized and fashioned it into a new world. Sounds like mixing one’s labor with the earth to me!

  6. Nate Oman
    May 12, 2005 at 11:02 am

    Frank: I not that you do not include economic theorists in your list of approaches to be rejected in favor of the prophets ;->

    I stop with the 19th century for two reasons. First, I know the sources better. Second, Mormons were involved in more adventuresome attempts at forging economic arrangements. Those attempts, in turn, produced a host of questions about institutional design and detail that reveal — I think — the contours of a Mormon approach to property more starkly. This preference for institutional detail and the structure of rules is, of course, a lawyer’s bias. I would be very interested in the words of later prophets on property and perhaps even more in later methods of dealing with the detailed issues of property that arise. I just haven’t been through the material very thoroughly. (Of course, I have been through the 19th century material very thoroughly either…)

  7. May 12, 2005 at 11:20 am

    I concur with Jonathan and Frank, Nate; this is a fine way to introduce the basic issues as well as corral a bunch of different perspectives together. Kudos for writing it; I’m anxious to see where you plan on taking it.

    I agree with Adam that your utilitarian and liberal theories are both ultimately instrumental. The former posits a good–social and economic efficiency–which can be measured and found wanting in environments where property is not protected by right. The latter also posits a good–human autonomy–and makes a similar calculation. Which means, of course, that property is a secondary concern, and subject to debates about the meaning and fulfillment of the chosen goods; hence utilitarian arguments can be made for constructing property rights in ways that nonetheless are subject to positive collective ends, and liberal arguments can similarly be made for distributing property is diverse socially “empowering” ways. These historically haven’t been the dominant interpretations of utilitarianism and liberalism, of course; both have tended, more often than not, towards the individualistic. But the possibility for such readings are there, which is one of the reasons serious libertarians either go hard-core objectivist or make a more or less principled retreat from philosophy and content themselves with some sort of pragmaticism. There is not, to my knowledge, any serious theory of property that can absolutely establish a proprietory relationship between a person with any one set of things; Locke himself had to admit that labor can’t take you all the way back, and at some point one just has to invoke his famous “provisio” (namely, so long as there still appears to be sufficient stuff left around for everyone else, we just won’t dispute how might came to make it’s property claims) and get on with politics.

    Also, Adam’s comment about property being tied to virtue is important. It’s also arguably an instrumental view, though one might claim that “virtue” arises from a kind of fidelity to natural or divine law, and hence is entirely social in your third sense.

  8. May 12, 2005 at 11:24 am

    “I have often thought that perhaps Mormon theology entails that God is ultimately a Lockean. After all, how do we account for the fact that he owns the world? Certainly not on the ground that he is the ontological fount of its existence. No can do, as matter is co-eternal with God. So what is the answer?”

    You’re absolutely certain that God is, in no sense whatsoever, the ontological fount of the world’s existence? That requires a pretty clear definition of what it was that was “existing” about the “matter” that preceded God’s “organization” of it.

    Just another point in favor of the view that figuring out one’s economics is dependent upon figuring out one’s ontology first.

  9. Frank McIntyre
    May 12, 2005 at 11:26 am

    I was not aware that economic theorists had much to say about our moral or ethical rights to property. But if they do, I imagine they are not much better than the legal ones. Here I’m thinking that the classical economists were essentialy doing political theory when they went down that road.

    I take the efficiency reasons as pretty obvious. But even in that case, if available, I would certainly be more interested in what God thinks about efficiency than about what economic theorists think.

  10. Nate Oman
    May 12, 2005 at 11:46 am

    Russell: I wonder what happens to your view of the priority of ontology once you allow the conepts of right and entitlement to decompose a bit into concrete rules and remedies. One of the basic insights of Llewellyn and the other legal realists is that one can unhitch the notion of remedy from some generalized notion of ownership. Llewellyn did this in the UCC with the concept of title and the passing of risk of loss. The basic issue is this: A and B enter into a contract under which A sells widgets to B to be delivered later. Prior to delivery, the widgets are destroyed. Who bears the loss, A or B? Under the common law the question had been answered by a complex set of rules that purported to identify the moment at which title to the widgets passed from A to B, title being a concept that also carried with it lots of other legal rights, such as the right to replevy (get a sheriff to forcibly take possession of the property and return it to you). In the UCC, Llewellyn completely dispensed with the idea of title, and simply set up some rules that told us when the risk of loss passes, regardless of the other legal rights that either side had in the widget. What Llewellyn’s changes suggest is that it may be that thinking of property as some sort of basic moral relationship that exists between a person and a thing from which one then deduces more detailed institutional arrangments may well be mistaken. It may be that there actually is no foundational concept of ownership or title that links us to things, but rather simply a set of rules that governs the various sorts of situations in which we have disputes over stuff. These rules, in turn, may be based on a host of different concerns, only some of which are even tangentially related to some core concept of how we are morally entitled to this or that thing.

  11. Jim F
    May 12, 2005 at 12:12 pm

    Frank, some of us think that classical economists were doing moral or political philosophy all along. In our view, economics is a narrowing (a reasonable one, of course) of what the classical economists were doing.

  12. May 12, 2005 at 12:26 pm

    “These rules, in turn, may be based on a host of different concerns, only some of which are even tangentially related to some core concept of how we are morally entitled to this or that thing.”

    An interesting example, but I’m not sure how what you’re saying here disagrees with what I said–or rather, what I meant to say. Let me try again. One’s economics is dependent upon one’s ontology in the sense that economics is, or at least properly ought to be understood as, as Jim correctly points out, a kind of moral philosophy, and how one takes up fundamental issues of being is the sine qua non of philosophy, whether a particular philosopher recognizes it as such or not. I don’t mean to say, and was wrong if I implied, that all economic models have to begin with ontological arguments; however, the presumptions are there nonetheless. It seems to me to be quite present in Llewellyn. His basic, unstated, ontological assumption was that “ownership and title” do not, in fact, intersect with fundamental matters of things in the world, and consequently are properly understood simply as formal rules, not expressions of moral entitlement. The rules themselves, on the other hand, as rules, do have some sort of fundamental purchase on the world–perhaps because the act of consenting to rules reflects basic reality of the rational self, perhaps because rule-making is s functional aspect of the human psyche, perhaps for reasons of efficiency and hence maximization of disparate goods, or whatever (I don’t know who Llewellyn is, so I can’t say).

  13. Nate Oman
    May 12, 2005 at 12:42 pm

    Russell: Llewellyn refers to Karl Llewellyn, a long time professor at Columbia and the University of Chicago from the 1920s to the 1960s. He was one of the leading intellectual forces behind American Legal Realism and was the chief drafter of Article 2 (the law of sales) of the Uniform Commercial Code (UCC), probably one of the more successful commercial statutes in the history of the world. Despite the Welsh name he was a Germanophile of the first order, actually enlisting in the German Army during World War I while studying as a student in Germany. He was eventually awarded the Iron Cross, and continued to maintain intellectual connections with Germany during the Weimar period (which was unusually productive in terms of jurisprudential thought, eg Max Weber and Hans Kelsen, even if it was a bit pathological legally speaking). To connect him to names that you might find familiar, Brian Leiter’s main agenda in the philosophy of law is to reconceptualize Karl Llewellyn’s jurisprudence as a form of philosophical naturalism. It is not clear to me that Leiter has Llewellyn right here, but he is an expert in legal philosophy and legal realism, and I am not. Llewellyn was first and foremost a student of the common law and two of his books — _The Bramble Bush_ and _The Common Law Tradition_ — are concerned primarily with understanding the development of legal doctrine, espeically in private law subjects (Llewellyn was a contracts expert). I think that it would be wrong to claim that Llewellyn did not see moral principles as intersecting in the real world. On the contrary, he was insistent contra the turn of the century formalists (or at least the cartoon version of them created by the realists) that law inevitably was a matter of moral judgement at some level. Rather, I think that Llewellyn was skeptical about the particular moral categories — such as ownership or promise — that had structured private law, believing that as often as not these categories had little or no traction on the resolution of actual legal disputes (Llewellyn once defined law as “what officials do about disputes”) and obscured more than they revealed.

  14. Nate Oman
    May 12, 2005 at 12:45 pm

    Llewellyn was also a composer of songs, mainly about legal doctrine, which, according to a partner at my firm who had him as a professor, he used to regularlly sing to his students while standing on his desk in class.

    He was a bit of an odd duck.

  15. May 12, 2005 at 1:17 pm

    “He was a bit of an odd duck.”

    The best ones always are (see: Rousseau, Heidegger, Feyerabend, etc.).

  16. Frank McIntyre
    May 12, 2005 at 1:43 pm

    Jim, in many cases that is right. Pretty much everything used to be called “philosophy” even if it isn’t now, but I think good sized chunks of what the classical economists did is probably now more of interest to the political theorists/philosophers than to the neoclassical economists. There are plenty of exceptions though were central economic ideas stem from work by the early classical economists– comparative advantage comes to mind.

  17. May 12, 2005 at 2:12 pm

    Nate:

    Am I to assume from your original post that you do not think that Mormon doctrine establishes a basis for property RIGHTS? Or some sort of limited right? And if so what sort of limitations would the gospel require?

  18. A. Greenwood
    May 12, 2005 at 3:26 pm

    “It may be that there actually is no foundational concept of ownership or title that links us to things, but rather simply a set of rules that governs the various sorts of situations in which we have disputes over stuff. These rules, in turn, may be based on a host of different concerns, only some of which are even tangentially related to some core concept of how we are morally entitled to this or that thing.

    The, ah, Burkean theory of property.

    Which, now that I’ve thought of Burke, let me put my Burkean hat on and respond to Paul Mortensen. I think it would be a great mistake to think that there were no such things as property rights, just because we can’t connect property rights to something metaphysical.

  19. Nate Oman
    May 12, 2005 at 3:40 pm

    Paul: You seem to want a very small word — RIGHT — to do a great deal of intellectual work. I am not quite sure what you are talking about when you are talking about property rights. One of the central points of this post is not to argue against the idea of a right to property, but rather to suggest that property is too complicated a phenomena to be captured without a whole lot more work than is implied in binary questions like “Do we have a right to property or not?”

  20. May 16, 2005 at 4:44 pm

    Nate:

    Sorry for the delay in the response but I just spent a long weekend lounging on a beach with my spouse completely disconnected from the rest of the world. I was actually hoping my post would be able to jibe you into taking a position on the subject but obviously I failed.

    RIGHTS take two different forms defined primarily by the source of their authority. The first, and today the most commonly invoked, are civil (or legal) rights. Civil rights derive their authority from whatever process a community has established for enforcing them. In your brief historical treatment the utilitarian model would fall into this class of right. The second class of rights are moral (or inalienable) rights which derive their authority from an appeal to metaphysics (which for Mormons means God or the Eternities). The liberal justification for property rights you mention belongs to this class. Civil rights are transient whereas moral rights are eternal. Discussion of civil rights in the context of the gospel is meaningless—moral rights are all that matter. So that’s what I mean when I use the term RIGHT.

    You assert that the concept of property is too complicated for a dichotomous rights-based approach. While you may accuse me of oversimplifying the issue I think you are overcomplicating the issue. Your terminal question completely misses the mark. I am not interested in whether or not I have a right to property. Rather, I am interested in whether or not I have a right to OWN property. OWNERSHIP is the central issue I think you were looking to address and ownership is a binary concept—I either own that widget or I do not. The defining characteristic of ownership is creation.

    Intellectual property provides the clearest lens through which to examine this concept. Fortunately, I’ve been endowed by my Creator with certain faculties which have allowed me to develop a few pieces of intellectual property that are all my own and which provide a decent income. I was born on this with certain predisposed abilities—call them talents—and that those talents are gifts from a benevolent God without any strings attached. During my life God may (or may not have) provided assistance with developing those talents in the form of inspiration, goodly parents, faithful instructors, etc. But regardless of the level of assistance I may have received, those talents and the products of those talents remain uniquely my own. Nothing in the gospel justifies, morally, divorcing me from the fruits (i.e. property) of my creation. In fact, there’s plenty of scriptural support that because I own those pieces of intellectual property I have a right to said properties. We own our works and the consequent products or results of those works. To argue otherwise turns the concept of responsibility and accountability for our actions on its head.

  21. Nate Oman
    May 16, 2005 at 4:59 pm

    Paul: My point is precisely that ownership is not a simple, binary concept. Saying that you own something obscures as much about your moral entitlement to it as it illuminates. Intellectual property is actually a good example of this. If you “own” the IP that you have produced does this mean that I am morally obligated to obtain your permission before thinking certain thoughts (ie the ones that you have created)? Am I only morally obligated to refrain from using them for profit without your permission? What if I independently discover the same thing without copying your ideas? Am I morally prohibited from using them in that context? Using them for profit?

    Ownership is only a simple concept if one refrains from thinking very much about what it means in practice.

  22. Bill
    May 16, 2005 at 6:01 pm

    Makes you wonder about Intellectual Reserve, Inc.

  23. May 17, 2005 at 4:15 pm

    Nate:

    Please tell me you’re not being serious. Thoughts? Ideas? Surely you jest. If you’re not kidding then I shudder to think how low the likes of BYU and HLS have sunk in training their charges. I guess one can blame it on the thin mountain air and the poisonous Charles River water or maybe its just the combination of the two schools. You don’t even address my contention that ownership derives its moral right from the action of creation– which is the argument I thought you’d want to address and also the avenue down which I think offers the most enlightening opportunity for discussion.

    Ownership, in and of itself, is a binary concept. Your question about thought is a red herring. Does Einstein own the Special Theory of Relativity? Of course not. Does he own the paper he wrote (an act of creation) in 1905 explaining it to the world? Absolutely. Is one morally obligated to seek Einstein’s permission to use the paper for any purpose? Absolutely. Einstein owns the paper he wrote not the thought that created it.

    Your problem with ownership as a binary concept is a failure to recognize your own underlying assumptions. You assume there will be an avenue for profit. You assume that whatever someone creates will inevitably find its way to the public domain. By choosing to participate in a particular society we all deal with numerous assumptions about which few of us ever seriously consider and those assumptions, as well as their consequences, can vary greatly from one community to another. A discussion about the gospel and morality should remain above any practical differences that may occur. In addition, your concern with practice emphasizes that your primary concern with your original post is not with moral obligation but rather with civil obligation. You are obsessing over how individuals actually behave rather than how they ought to behave when you assert that “[o]wnership is only a simple concept if one refrains from thinking very much about what it means in practice.” The gospel teaches us how we ought to behave here on this earth. Practice should be guided by sound moral directives. Just because civil institutions create imperfect (or incomplete) outcomes does not mean that moral directives that ought to shape those institutions are flawed and that discussion concerning those moral directives is superfluous. Rather, we should seek a better understanding of morality in order to both guide individual behavior (Nate, you don’t have to steal my property or even get close to the line) and create better civil institutions.

    The law of tithing illustrates effectively why one should not confuse moral and civil obligations. Right now the US does not have any laws requiring each individual to pay a tithe to a church. Because our civil institutions do not oblige us to behave in any particular way with respect to tithing we Mormons tend couch discusssions of tithing in purely moral terms– which is where such discussion belongs. But suppose that all changed and all of a sudden every US resident was required to pay a tithe. Would the fact that we decided to institutionalize the law of tithing change its moral character? No. Would such a law change how we treated it in praxis? Of course. Which is more important? A rhetorical question. Think of the legalistic questions the institutionalization of tithing would generate. Do I include the value of company funded benefits in my 10% calculation? Do I include the 50 basis point discount I get on my conforming mortgage due to its nature as an implicit government backed security? When do I pay the tithe on my individually funded retirement account? Etc.

    I was hoping to carry on a conversation about the moral justification for ownership but if you are unable to raise your level of discourse beyond purely legalistic nitpicking then my efforts must be in vain.

  24. Jonathan Green
    May 17, 2005 at 5:11 pm

    “Does Einstein own the Special Theory of Relativity? Of course not. Does he own the paper he wrote (an act of creation) in 1905 explaining it to the world? Absolutely. Is one morally obligated to seek Einstein’s permission to use the paper for any purpose? Absolutely.”

    This must be some new strategy of argument that I have not encountered before: embracing reductio ad adsurdum and making it the foundation of the argument. The sheer novely astounds me.

  25. Nate Oman
    May 17, 2005 at 5:36 pm

    Paul: I am not being clear here. It seems to me that the point of morality is to guide our decisions when we are faced with questions of how we ought to act. Hence, I don’t see that the moral claim to own something can be understood independently of the situations in which the concept of ownership is invoked to guide our decisions. I object to the claim that ownership is a purely binary concept precisely because such a binary approach does not, I believe, provide us with very much guidance on how we should make our decisions.

    As for the ownership of ideas, my claim is not at all absurd. You claimed that intellectual property is the core example of a clear right of moral ownership. My point is that unless one confines the concept of IP to the actual tangible objects upon which it is recorded (eg the actual paper on which Einstein wrote out the Special Theory of Relativity) then one is in effect talking about the ownership of a set of abstractions, whether pitched at the level of specific words and phrases, paragraphs, or general ideas. How far up the chain of abstraction ones property extends seems to me to be a complicated moral question that is not solved by reference to some simple concept of ownership.

    As for Locke’s theory, it has a number of problems. First, it does not explain how one might acquire a valid property right in some object that one did not produce by one’s own labor. Hence, we need some theory of legitimate alienation and non-creative acquisition. Second, the theory tells us that one is entitled to “own” some object in which one has mixed one’s labor, but it does not really tell us much about the contrours of ownership. Does ownership mean a right to exclusion? In all circumstances (think of the gleaners in the corners of the field)? It is not clear to me that Locke’s theory as sufficient power to specify the particulars that are necessary for it to act as any sort of a moral guide for our behavior. This doesn’t necessarily mean that it is incorrect, but it will have to be supplemented with other moral theories if it is to do much work. Whether or not such a hybrid beast can be created is a question to which I don’t know the answer.

    I am, of course, devestated that I have besmirched the reputation of BYU and HLS in your mind. (Or at least of BYU…)

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