"The Law," "The State," and Other Political Writings, 1843-1850

4. Property and Law

43 [vol. 4, p. 275. “Propriété et loi.” Originally published in the 15 May 1848 issue of Le Journal des économistes.] The confidence of my fellow citizens has given me the title of legislator. I would certainly have declined this title if I had understood it as Rousseau did. “He who dares undertake to provide institutions to a people,” he said, “must feel that he is capable, so to speak, of changing human nature, of transforming each individual who, of himself, is a perfect and solitary whole, into a part of a much greater whole from which this individual is to receive to a certain degree his life and being; of changing the physical constitution of man in order to strengthen it, etc., etc. If it is true that a great prince is a rare man, what is to be said of a great legislator? The first has only to follow the model that the second has put forward. The second is the inventor of the machine, while the first is only the workman who assembles it and makes it work.”1 Since Rousseau was convinced that the social state was a human invention , he had to place law and the legislator on a high pedestal. Between the legislator and the rest of the human race, he saw the distance or rather the abyss that separates the inventor from the inert matter of which the machine is made. According to him, the law ought to transform people and create or not create property. According to me, society, people, and property existed before the laws, and, to limit myself to a particular question, I would say: It is not because there are laws that there is property, but it is because there is property that there are laws. The opposition of these two systems is radical. The consequences that 1. Rousseau, Du contrat social, bk. 2, chap. 7.  4  Property and Law 44 Property and Law result from them are constantly divergent; let me therefore set out the question clearly. I warn you first of all that I am taking the word property in a general sense and not in the restricted sense of landed property. I regret, and probably all economists regret with me, that this word involuntarily awakens in us the idea of possession of land. What I mean by property is the right the worker has over the value he has created through his work. That having been said, I ask myself whether this right is a creation of the law or if it is not, on the contrary, prior to and higher than the law, whether it was necessary for the law to give birth to the right of property or whether, on the contrary, property was a fact and right that existed before the law and that had given rise to it? In the first case the mission of the legislator is to organize, amend, and even eliminate property if he thinks this right; in the second his powers are limited to guaranteeing it and ensuring that it is respected. From the preamble to a draft constitution issued by one of the greatest thinkers of modern times, M. Lamennais, I quote: The French people declare that they acknowledge rights and duties that predate and are greater than all the positive laws and that are independent of them. These rights and duties, directly handed down by God, are summarized in the triple dogma expressed by these sacred words: equality, liberty, fraternity. I put the question whether the rights of property are not among those that, very far from deriving from positive law, predate the law and are its raison d’être. This is not, as might be thought, a slight or pointless question. It is a vast and fundamental one. The answer to it is of the highest concern to society, something you will be convinced of, I hope, once I have compared the origins and effects of the two opposing theoretical systems. Economists consider that property, like the person, is a providential fact. The law does not give existence to one any more than to the other. Property is a necessary consequence of the constitution of man. In the full sense of the word, man is born a property owner, since he is born with needs whose satisfaction is essential to life, with organs and faculties whose exercise is essential to the satisfaction of these needs. These faculties are merely an extension of the person...