4. Without having recourse to abstract notions of justice or to the obscurities of historic origins, many writers of verydifferent shades have maintained that property is the creature of law.
"Banish governments," says Bossuet, "and the earth and all its fruits are as much the common property of all mankind as theair and the light. According to this primitive natural right, no one has an exclusive right to anything, but every thing is a preyfor all. In a regulated government no individual may occupy anything Hence arises the right of property, and, generallyspeaking, every right must spring from public authority." (3)Montesquieu uses nearly the same language as Bossuet: "As men have renounced their natural independence to live underpolitical laws, they have also renounced the natural community of goods to live under civil laws. The former laws give themliberty, the latter property." (4)
Mirabeau said, in the tribune of the Constituent Assembly, "Private property is goods acquired by virtue of the law. The lawalone constitutes property, because the public will alone can effect the renunciation of all and give a common title, aguarantee for individual enjoyment." Tronchet, one of the jurists who contributed most to the formation of the Code civil,also said: "It is only the establishment of society and conventional laws that are the true source of the right of property."Touillier, in his commentary on the Droit civil français, admits the same principle. "Property," according to Robespierre, "isthe right of every citizen to enjoy the portion of goods guaranteed to him by the law." In his Treatise on Legislation,Bentham says: "For the enjoyment of that which I regard as mine, I can only count on the promises of the law whichguarantees it to me. Property and the law were born together, and will perish together. Before law, there was no property;banish law, and all property ceases." Destutt de Tracy expresses the same opinion; and more recently, M. Laboulaye, in his Histoire de la propriété en Occident , formulates it with great exactness: "Detention of the soil is a fact for which force alonecan compel respect, until society takes up the cause of the holder. The laws not only protect property, they give birth to itThe right of property is not natural but sociaL" It is certain, in fact, as M. Maynz remarks, that "the three legislations(Roman, German aud Slavonic) which now divide Europe, derive from the State exclusively the absolute power over goodswhich we designate by the word property or ownership." (5)If M. Laboulaye and other authors of his opinion only intended to speak of a state of fact, they are right. If I have gatheredfruits or occupied a spot of land, my right hand at first, and subsequently the power of the state, guarantee me the enjoymentthereof. But what is it that my strong hand or the power of the state ought to guarantee to me? what are the proper limits ofmine and thine? is the question we have to determine. The law creates property, we are told; but what is this law, and whoestablishes it? The right of property has assumed the most diverse forms: which one must the legislator sanction in the causeof justice and the general interest?
To frame a law regulating property, we must necessarily know what this right of property should be. Hence the notion ofproperty must precede the law which regulates it.
Formerly the master was recognised as owner of his slave; was this legitimate property, and did the law, which sanctioned it,create a true right? No: things are just or unjust, institutions are good or bad, before a law declares them such, exactly astwo and two make four even before the fact be formulated. The relations of things do not depend on human will. Men maymake good laws and bad laws, sanction right or violate it, right exists none the less. Unless every law is maintained to bejust, we must allow that law does not create right. On the contrary, it is because we have an idea of justice superior to lawsand conventions, that we can assert these laws or conventions to be just or unjust.
At every moment of history and in every society, conformably to the nature of mankind, there is a political and socialorganization, which answers best to the rational requirements of man, and is most favourable to his development. This orderconstitutes the empire of right. Science is called in to discover it, and legislation to sanction it. Every law which isconformable to this order is good and just; every law which is opposed to it is bad and iniquitous.
It cannot be maintained that in human society, as in the physical Universe, the existing order is necessarily the best, unlesswe pretend that all social iniquities are legitimate, because they are necessary, and that every attempt at reform is a folly, ifnot an attack on natural law. In this case, we should also have to admit that slavery, confiscation and robbery are justdirectly they are enjoined by law; and then the greatest attacks on right would have to be regarded as the true right. The lawdoes not create right; right must dictate the law.
