Laudato Si, the Idea of Property, and the Rule of Law
Howard J. Vogel

(Howard is a dear friend of mine from my Quaker meeting who continually adds to my life with citations, comments and suggestions. I pass on to you below one big comment.I could not have said it better. As a matter of fact, I could not have said it at all.)

Pope Francis’ letter to his church and to the world at large, Laudato Si’, calls us to embrace an “integral ecology” by recognizing the deep interconnectedness of ecology, economy, and equality. That is to say, we need to embrace the way in which our social life (equality) is deeply interconnected and dependent on the well-being of the Earth and all of its inhabitants and processes (ecology), so that we might rethink and reframe our relations with each other and the Earth (economy) in a way that participates in the renewing processes of the Earth as collaborative partners. Taking this call seriously will lead us to rethink every aspect of modern civilization, including its very foundations, and the way we understand our experience of the land and how we govern ourselves under the rule of law. In short, Francis has called us to understand and act on the knowledge that our interconnectedness runs all the way down to the subatomic level of the material world and includes the energy and spirit in which all are enveloped in what has been called our “planetary entanglement.”1 Out of that understanding Francis calls us to make peace with the land AND each other. To think and act in this way will lead us to a different understanding of the idea of property, as well the rule of law itself, from what has emerged in modern thought since the 17th century.

The rule of law is one of the distinctive features of our civilization. It recognizes the sanctity of each person by holding out the promise that all people are entitled to their “day in court” when they experience burdens or are denied benefits at the hands of the state or their neighbors. Thus, we say that the individual has “rights” which all others and the state are required to respect. The rights associated with the idea of property are among the most important individual rights. To be entitled to property is an important expression of an innate need and quest by humans for security that emerges in early childhood. It is not surprising that a central feature throughout the long history of property law, stretching back to the antiquity of Rome, is the idea of possession. Possession takes on meaning in property law because such law, rightly understood, involves relations between individuals rather than things—between those who possess property, often called owners, although they could be tenants, renters in our vocabulary, as well as non-possessors or non-owners. With possession comes the right to occupancy and the right to exclude others from the property

The idea of possession applies to both personal property, such as things we carry in our pockets, as well as real property, such as the land. The idea of possession as an important aspect of property law is part of common knowledge in the Anglo-American culture. Thus, for example, children at play can be heard to say “finders keepers, losers weepers” as they come upon something they value. Likewise, when they quarrel over whatever that something is that they found, they may be heard to say “I saw it first.” And the precocious youngster in such a quarrel who has actually grabbed whatever it was that was found can be heard to say, “It’s mine, because possession is nine points of the law.” Perhaps you uttered these words in your own childhood play.

To be without a secure relationship to land where one can be at home, is to be bereft of human agency and human life in community with the land and each other. Hence the idea of property in law has grown to include a set of settled expectations for a person with a home on the land he or she is said to own, to the exclusion of others. But it has long been true in property law that there are certain exceptions to the rights of owners. Along with the settled expectations that come with land ownership, the idea of property is malleable, and thus open to regulation by the state for the well-being of all.2 For example, the law of “nuisance” requires that in certain limited situations, the impact of a possessor’s use of the land on others in a neighborhood must be taken into consideration in conflicts between neighbors. Likewise, the idea that use of land must be considered in the larger context of the community gives the state power to regulate uses of land in a way that restricts private choices in order to serve the well-being of the entire community. Local zoning laws express this idea. But these well-known limits on land use have not been enough to protect the Earth from human actions that endanger the renewing processes of the Earth on which all depend.3

The costs to the Earth of the many extractive uses humans have engaged in are most often viewed as “externalities” to be excluded from the bottom line of the economic calculus that so often is the ultimate basis for making land use decisions. Thus, although the state has power to zone land use in a way that brings such uses into collaboration with the renewing processes of the Earth to the benefit of all, that power has often been used to merely “improve” the land, raising its tax value, through the action of some, to the detriment of the whole given the way the economic order has promoted an extractive rather than a collaborative relationship with nonhuman communities and the Earth on which all communities depend. Here we see how the interconnection of ecology and economy that Francis emphasizes has worked to deny equality in the destruction of the Earth and the ecosphere, with especially serious consequences for the poor. In short, the ecological crisis we face has been exacerbated by the conversion of the rule of law into an anthropocentric instrument that serves the unbounded human will of individuals in an extreme form of individualism that has undermined the larger community of life on which the individual depends. The dynamic intersection of property and industrial civilization, founded upon materialism and rampant consumption, has led to what Francis rightly calls a “throw away culture” to the detriment of the Earth and our life together.

The ecological crisis we face reveals the many ways the rule of law has become the handmaiden of the extreme individualism that now undermines the sanctity of the individual and the common good. This is what Francis points to when he says that the result of human intervention is most harmful to the poor — but soon it will affect us all. The participation of law in this harmful dynamic is expressed, if not entirely caused, by the turn from classical natural law to modern legal positivism as the frame of reference for understanding the phenomenon of law.

Natural Law theory reigned supreme from the time of the ancient Greeks down to the Enlightenment. This theory ultimately fell into serious decline with the rise of utilitarianism which, in the 19th Century became the basis of much modern legal positivist theory. Classical natural law theory has as its distinctive characteristic the understanding that law springs from and reflects enduring principles of universal application. The source of these may be transcendent ideals, as in Plato, or the Divine Law of God, as in the most systematic natural law thinker, St. Thomas Aquinas. Positive law is understood by natural law theory as a human endeavor which is law only insofar as it reflects the natural law. Classical natural law theory takes the position that natural principles of justice can be “discovered” and thus worked into positive law by the use of unaided human reason. This theory ultimately places true law outside of human limits but makes it accessible to human experience through the use of reason. A significant feature of natural law is that it sets up the possibility of determining whether human positive law is actually law by judging it according to the criterion of the natural law. Thus the natural law lawyer will declare, in the face or an apparently unjust positive law, that such a “law” need not be obeyed since it is not law.

Legal Positivism was developed in the modern era by John Austin. It is largely based on the utilitarian ideas of John Stuart Mill and Jeremy Bentham. This theory of law embraces the idea that law is essentially a general command of the highest political authority backed up by the coercive sanctions of that authority. Further, it claims that law as a category of human behavior is distinct from morals. Thus law is understood as imperative rather than indicative as in natural law. The conclusion of the positivist is that law is morally neutral. Modern legal positivist theory does not, however, deny that law has moral consequences but, rather, rejects the idea that unjust laws are not law. The modern positivist view of law has roots in ancient philosophy. The most immediate roots of Austin’s works are found in The Leviathan by Thomas Hobbes. Hobbes argued that law was the command of the absolute sovereign. For Hobbes this meant that the sovereign was superior not only to the subjects under the sovereign’s law, but also that the sovereign was completely above law, unfettered in any manner by its constraints. The sovereign, for Hobbes an absolute monarch, was indistinguishable from a tyrant. Tyrannical though the power of the sovereign was to make and enforce law, Hobbes saw it as a necessity which arose out of the state of nature. In the state of nature, the human was fraught by insecurity due to the threat to one’s security posed by others in human society.

Modern legal positivism follows Hobbes by explicitly rejecting the notion that the members of a political society retain any rights not expressly recognized by the law of that community. Ultimately positivist theory stands opposed to the traditional concept of natural rights on the grounds that they are irrelevant and outside an empirical metaphysics. As Bentham put it, the notion of natural rights is “nonsense on stilts.” In this light, individual rights, recognized under the Constitution of the United States, for example, are not natural rights, existing prior to the recognition given them by law. Prior to such recognition they are mere claims, which may be grounded in a variety of moral theories. That, however, does not raise them to legal status. Only the sovereign can do that.

Today a deconstructive postmodern critique of law expresses a deep skepticism about legal rules that also calls into question the idea of rights, natural or otherwise. This critique proclaims that “law is politics” and leaves us with no sense that law or politics might be animated by a purpose other than the will of those engaged in a struggle for dominance in the market place. The practicing lawyer is thus often left with a self-image of being no more than a hired gun, for sale to the highest bidder, in service of private will.

So what are we to do if we are to rescue the rule of law from its positivist captivity in service of extreme individualism separated from the reality of our planetary entanglement? How might law be reformed to enable us to make peace with the land AND each other? We must start with an acknowledgement that the critique of law is important for it shows us how law fails to live up to its possibilities for promoting justice and nurturing the life we share with the entire planet. From there we can begin to reimagine the possibilities of law in what has been called a “reconstructive post-modernism.”4 This can lead us to explore the possibility of thinking about the law in neoclassical metaphysical terms without going back to a pre-modern conception that would likely sacrifice the sanctity of the individual which modernity has brought forth. A neoclassical view of law would hold to the importance of the sanctity of the individual, but do so in recognition that the well-being of the individual occurs within community. Thus, the rule of law protects the individual not as a person separated from the world, but rather as a “person-incommunity.”5 Moreover what has been called the “one commonwealth of life”6 extending across the Earth is now a commonwealth that is made up of a “community of communities.”7 In this way we can fruitfully begin to rethink and reimagine the rule of law so that law can support us in collaborative partnership with the Earth and its renewing processes, rather than continue on the path that assumes that somehow we own the Earth, and that we humans and our civilization can rise above and transcend the Earth itself. The transcendence that we can and do experience in our everyday life is experience we have in our relationship with and on the Earth that is our home, as well as with each other. If we are to get down to earth and come home before it is too late, our understanding of property and the rule of law needs to reflect this fact. To do this we could profitably learn from the wisdom of indigenous people for whom the land is of central importance as a relative to which they owe a duty of respect and care. Listen to the words of the Dakota poet and scholar Gail Westerman, a direct descendant of several leading Dakota figures in 19th century Minnesota history, and imagine for a moment what the rule of law might become in the context of our planetary entanglement:

Mni Sota Makoce. The land where the waters are so clear they reflect the clouds. This land is where our grandmothers’ grandmothers’ grandmothers played as children. Carried in our collective memories are stories of this place that reach beyond recorded history. Sixteen different words in the Dakota language describe returning home, coming home, or bringing something home. That is how important our homeland is in Dakota regardless of where our history has taken us. No matter how far we go, we journey back home through language and songs and in stories our grandparents told us to share with our children.

“Back home” implies a return, a cycle of returning, as if it is expected, natural, a fact of life. Families gather around kitchen tables and remember the generations before us or journeys we make to or away from home. It is there, back home, where we are trying to return, where we belong, where the landscape is as familiar as our childhood beds and our mother’s hands, where our roots are the deepest. It is there, back home, where we hear the repeated stories that make us who we are. So deep is that connection to the land that the word for mother and for the Earth are the same in the Dakota language: Ina.8

In these poetic words of communal dependency, Gwen Westerman speaks of the deep reverence Dakota people have for their connection with the land and each other. The wholeness of the people depends on their relationship with each other and the land. This recognition of deep interconnectedness is expressed in the common phrase of greeting offered by the people raised in the Dakota tradition to those they meet — Mitakuyupi Owas’in (All My Relations).9 This greeting expresses the deep sense of interconnectedness of everything in the cosmos accompanied by a deep respect (Ohoda) for it. Waziyatawin, a leading contemporary scholar of indigenous history, herself a Wahpetunwan Dakota from Pezihutazizi Otunwe in southwestern Minnesota, explains this phrase in the following words:

[W]hile [the phrase Mitakuyapi Owas’in] translates easily enough, the worldview associated with this phrase becomes apparent only when used in the context of the extensive network of other kinship terms. This is language that reflects the sacredness and interconnectedness of all creation and . . . . It is used in greetings, in prayers, in ceremonies, in speeches, and any other time one wants to call upon all or part of creation. Thus, uttering the phrase in English does not have the same depth of meaning, because in English, other spiritual beings are not referred to with a kinship term in everyday speech, even siblings.10

Dakota people, everywhere I have encountered them, explain this phrase as expressing the depth and quality of relationship that Dakota people have with each other in their extended kinship system and with the land, water, and skies in which the Dakota people encounter the Spirit. Out of this vast kinship, that includes the earth, the Dakota people understand they are called to a duty to act in a “good way” with a “good heart” for the well-being of all. In this way, Ohoda (respect) takes on an active meaning among Dakota people in the context of everything and everyone they encounter.
The challenge posed by the wisdom of the Dakota people, has been embraced by Francis in Laudato si’. Can we embrace it so that the rule of law might be understood as a purposeful activity that enables us to reframe the idea of property and the rule of law so that we might creatively collaborate with the renewing processes of the Earth that we encounter in our planetary entanglement in such a way that all might flourish together?

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Howard J. Vogel is Emeritus Professor, Hamline University School of Law, and a member of Twin Cities Friends Meeting of the Religious Society of Friends (Quaker), St. Paul, Minnesota.
This essay was originally published in the anthology of responses to Pope Francis’ encyclical
“Laudato si’” (2015) edited by John B. Cobb, Jr. & Ignacio Castuera entitled “For Our Common Home: Process-Relational Responses to Laudato si’. Anoka, MN: Process Century Press, 2015, at pp. 289-297.

Notes
1. Keller, Catherine. The Cloud of the Impossible: Negative Theology and Planetary Entanglement. New York, NY: Columbia University Press, 2015.
2. Underkuffler, Laura S. The Idea of Property: Its Meaning and Power. New York, NY: Oxford University Press, 2003. at 1-4.
3. Wood, Mary Christina. Nature’s Trust: Environmental Law for a New Ecological Age. New York, NY: Cambridge University Press, 2014, at “Part I Environmental Law: Hospice for a Dying Planet, pages 1-121.
4. Griffin, David Ray. Introduction to SUNY Series in Constructive Postmodern Thought, in Cobb, John B. Jr. Postmodernism and Public Policy: Reframing Religion, Culture, Education, Sexuality, Class, Race, Politics, and the Economy. Albany, NY: State University of New York Press, 2002, at xiii.
5. Cobb, supra, note 4, at 124-132.
6. Rex Ambler, a British Friend, wrote about this twenty-five years ago, Befriending the Earth: A Theological Challenge. Friends Quarterly, volume 26, 1990 – 1991, p. 17. Ambler’s words are included in Quaker Faith & Practice, Fifth Edition: The Book of Christian discipline of the Yearly Meeting of the Religious Society of Friends (Quakers) in Britain, 2013 in the section on the “Unity of Creation” at para. 25.15, 2013.
7. Cobb, supra, note 4, at137-142.
8. Westerman, Gwen & Bruce White. Mni Sota Makoce: The Land of the Dakota. St. Paul, MN: Minnesota Historical Society Press, 2012, at p. 13.
9. Wilson, Waziyatawin Angela. Remember This!: Dakota Decolonization and the Eli Taylor Narratives. Lincoln, NE: University of Nebraska Press, 2005, at p. 62.
10. Wilson, supra note 9, at 62.