by Carl Watner
From Issue 160 – 1st Quarter, 2014

In their book, LAW AND JUSTICE IN COMMUNITY, Garrett Barden and Tim Murphy write, “The nature of morality is a constant theme of this book. ‘What am I to do?’ is the moral or ethical question … because as humans we are constantly engaged in thought and action,” and must constantly deliberate and decide what course of action to take. [1] So, what would you do in the following situations?
you were out walking and saw a young child drowning in a pond;
you learned of people dying from starvation in Ethiopia;
you found a homeless family with a sick child occupying an unused building that you owned?
Although under the common law “there is no general duty to come to the rescue of another,” what are your legal and moral obligations in the above cases? [2] Would your responsibilities differ because of your proximity to the endangered? Would someone be able to throw you into jail for your failure to help those in need? Would you be able to remove squatters from your property? Would those in extreme need be justified in using your property in order to ensure their continued survival? Would your failure to help the drowning child make you responsible for that child’s death?

These questions and many others of a similar nature presented themselves as I did my reading during the Summer and Fall of 2012. For example, in the book WORLD HUNGER AND MORAL OBLIGATION, the editors discuss the responsibility of those in the developed countries toward the rest of the world’s population. [3] How should those who have more than enough food treat those who lack? Do those threatened by starvation have the right to invade and consume the property of those who have more food than they need? Would those whose property is invaded have a right to repel those who claim a right to their extra food? Is it legally and morally proper to take the food of another without that person’s consent in order to save one’s own life? Is the claim “it is my property” a sufficient reason for refusing food to the starving? In such a situation, where an owner chooses not to share his superfluities, is that owner legally or morally responsible for the death of people who die from starvation?

Similar conundrums were presented in an article subtitled “Rights of Subsistence and the Principle of Extreme Necessity” by Gerald Swanson. [4] Who should decide how much food, shelter, and clothing should be distributed to the poor and needy? Is anyone responsible for meeting their needs? Who should take care of those who cannot produce their own basic necessities? Would it be morally acceptable to let them starve, freeze, or die from lack of medical attention when others have more than they, themselves, require? Who should decide 1) how much is enough to distribute to the poor; 2) how much the rich should keep; and 3) the geographic limits of the distribution? Should it be limited to the poor in the next town, the next state, or the next country? Why should the poor on the other side of the earth suffer when there are superfluities here? In short, do individuals, by the mere fact of their being born, have a right to subsistence, and, if they do, who is obligated to provide it, and who is to be held responsible if there is not enough to go around?

Before answering these questions from a voluntaryist perspective, let’s look at how they were dealt with before the advent of the modern nation-state.

In Western Europe, at least until the 16th Century, the primary responsibility for the poor fell into the hands of people of the Christian faith, who followed Jesus’ teachings to feed the hungry, shelter the homeless, and care for the sick. The attitude of the Catholic Church was best exemplified by St. Basil (c. 330-379) who asserted that those who had more than they needed really didn’t own their extra wealth: “The bread that you store up belongs to the hungry; the cloak that lies in your chest belongs to the naked; and the gold that you have hidden in the ground belongs to the poor.” [5] This theme was elaborated during the later Middle Ages when the principle of extreme necessity became a common doctrine among medieval theologians and

canon lawyers. The principle stated that “a person in extreme necessity — that is, facing the prospect of certain, not necessarily instant, death — may rightfully take the property of other people to sustain his life. This principle is the most radical formulation of the medieval belief that God had bestowed the earth upon all mankind for its sustenance… .” [6] This conclusion led to two co-ordinate positions:

[T]he first held that people in extreme necessity might rightfully take what they needed to survive, and that their taking such goods had nothing of the nature of theft; and the second, … held that every person has the obligation to sustain the life of other people once his own needs have been met. [7]

Gratian’s DECRETUM, a famous medieval tome compiled about 1140 AD, also expounded the view that the fruits of the earth belonged to all mankind. “All things are common, that is, to be shared in time of necessity with those in want. … [W]e should retain for ourselves only necessities and distribute what is left to our neighbors in need.” [8] Joannes Teutonicus (also known as John of Wildehausen , c. 1180-1252) was one of the first medieval theologians to discuss the principle of extreme necessity. Citing the DECRETUM, he interpreted the word “‘common’ to mean ‘shared in time of need’”: “No one may call his own what is common, of which if man takes more than he needs, it is obtained by violence.” [9] “The decretist text did not deny the right to private property; rather it denied the right of anyone to appropriate as his own more than sufficed for his own needs.” According to Joannes, a “man was not bound to deprive himself of his own necessities in order to help another in need, though if he did so it would be a commendable act. He could even retain superfluities provided that others were not in want. But ‘in time of necessity’ any superfluous wealth of an individual was to be regarded as common property, to be shared with those in need.” [10]

The decretists saw no contradiction in maintaining the right to private property, on the one hand, and, on the other, the right of the poor to sustain their lives by taking from the wealthy. They recognized the right to private property, but the right of accumulation only extended as far as satisfying one’s basic needs. The man who accumulated goods beyond what he needed “to live in a decent and fitting fashion according to his status had no right to keep his wealth.” The DECRETUM was full of phrases like “Feed the poor. If you do not feed them, you kill them. A man who keeps more for himself than he needs is guilty of theft.” The canonists, living at a time when capitalism was unknown, “assumed that there was a fixed amount of food and other goods available.” As Brian Tierney explains in his book, MEDIEVAL POOR LAW, they believed that “a man who acquired more than was due to him was therefore necessarily depriving someone else of his fair share. He was literally guilty of theft.” That being the case, then it was clear that the poor had a right to be supported at the expense of the wealthy. A man “in extreme need who took the property of another was not guilty of any crime. He was not stealing what belonged to another but only taking what properly belonged to himself.” [11]

There was some question among the theologians and canon lawyers as to whether this obligation to assist the poor was legally enforceable in the church courts or whether it was simply a matter of fulfilling a moral obligation. Certainly the man who voluntarily helped the poor was more virtuous than the rich man who was forced to give up his wealth. But “from a lawyer’s point of view, there was a major flaw in the theory that a poor man had a right to the superfluous wealth of the rich. There did not exist any established form of legal action by which he could sue to enforce his right.” [12] Joannes Teutonicus solved this problem by directing the poor to denounce to the bishop the man who refused to give alms. The “Church could compel him to give, presumably by ecclesiastic censures,” by imposing penances, threatening imprisonment, and, in the last resort, by excommunication. [13]

Some later churchmen skirted this problem by describing what the poor took from the rich as a loan. The poor were duty bound to restitution as soon as their circumstances allowed. According to Martin de Azpilcueta (1491-1586), it was “more ethical to ask to borrow, than to borrow without acquiescence, and both alternatives” were superior to outright taking without permission. [14] Since the person who benefits from the taking must have the obligation to return what he has borrowed, this “proves that it is not the domain [the title] but the use that changes hands.” [15] Others opposed Martin by arguing that at the point of extreme necessity the goods became common, the title of the rich was extinguished, and that there was no further obligation on the part of the poor to restore whatever they had taken. [16]

In the century after Martin, the principle of extreme necessity became a topic for natural law writers, such as Hugo Grotius (1583-1645), Samuel von Pufendorf (1632-1694), and John Locke (1632-1704), and in the following century by Adam Smith (1723-1790). There was a wide variation in their thinking, but the consensus was that it would be morally wrong for anyone to starve while others had more food than they needed. If the world had been given to mankind in common, where was the proof that the poor had surrendered their rightful claims to what they needed to survive? According to Locke, “since a person has property for the sake of preserving himself and others, once his own preservation is secured, any further use for enjoyment is conditional on the preservation of others.” Thus, for Locke, charity is a right on the part of the needy and a duty on the part of the wealthy. … If a case of need arises… one man’s individual right is overridden by another’s claim, and the goods become his property. By failing to hand over the goods, the proprietor invades the share now belonging to the needy… .” [17] As Locke wrote in his FIRST TREATISE OF GOVERNMENT:

[N]o Man could ever have a just Power over the Life of another, by Right of property in Land or Possessions; since ‘twould always be a Sin in any Man of Estate, to let his Brother perish for want of affording him Relief out of another’s Plenty. As Justice gives every Man a Title to the product of his honest Industry, and the fair Acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much out of another’s, as will keep him for extream [sic] want, where he has no other means to subsist otherwise; … . [18]

What did Adam Smith, the father of modern economics think of Locke’s position? What did Adam Smith recommend in times of drought and famine? Was it possible for him to reconcile the rights of farmers and merchants to the grain they owned with the possibility that the poor might starve because market conditions were reflected in high prices, which the poor could not afford? On the one hand, Smith believed that if the markets for food and labor were freed of government intervention, in the long run the prices of food and labor would balance out “in such a way that the poor would never go hungry.” [19] “By raising the productivity of agriculture, commercial society could provide adequately for the needs of the wage earner without having to resort to any form of redistributive meddling in the property rights of individuals. Growth in conditions of ‘natural liberty’ would explode the whole antinomy between needs and rights.” [20] On the other hand, Smith admitted that governments had the responsibility to secure the subsistence of all the inhabitants of the realm. He “could not quite find the way” to say that the poor must simply die of hunger. He followed his conscience, rather than his economic analyses, to assert that in times of famine it was justified to suspend “property rights in grain.” [21]

Today, we must still answer the same questions that Adam Smith faced.
Does extreme necessity justify taking another’s property without permission?
Does nature kill or do men kill by their refusal to help others in need?
Should some die while others live?
Who should decide?
Does the right to live trump the right to own property?
Are some people obligated to produce so that others may survive?
What are the basic necessities?
Are they the same for an African bushman as for a resident of the United States?
Who should decide what other people need?
Are those who can produce the most to be enslaved to those who cannot produce enough for their own sustenance?
Let me briefly answer these questions from a voluntaryist perspective:
No. Extreme necessity does not excuse the use of another person’s property without permission.
Nature causes the death of a starving man; not the man who refuses him food.
Yes, in emergency and extreme situations (where not all can survive) it is necessary that some, if not all, perish.
No one decides who lives or dies in such situations. Nature decides.
No. One cannot live without property; nor can there be property without someone to own it.
No. People are not obligated to produce more than they, themselves, need, in order to support other people.
Basic necessities would be food, shelter, and clothing.
Yes, basic necessities are the same for every person.
No one should decide what other people “need.”
No one should be enslaved or forced to produce so that others live.
Consider this from the point of view of a factory owner who has decided to close his manufacturing facility because it is not producing a profit. [22] If his current employees cannot find work elsewhere, they will eventually starve to death. Is the factory owner obliged to furnish them jobs? If he closes his factory, and they have no other means of survival, is he responsible for their deaths?

First of all, it ought to be clear that the factory owner is not killing his employees by closing the factory. He might choose to help them find new jobs or relocate, but at some point they have to fend for themselves. It is a fact of nature and a fact of reality that a person who does not produce enough for himself is causing his or her own death. Some might reply that the reason the employees cannot sustain themselves is because the necessary land and resources have been appropriated by others. If land and resources were available to the employees, they would be able to survive. However, this only takes our analysis one step backwards. Who is the rightful owner of the resources in question, and what, or how does appropriation of the land and resources of the earth occur, and are those currently alive responsible for remedying what appears to be injustices in its current ownership?

It is certainly strong medicine to say that some should die while others live but should the factory owner be forced to keep his factory running? Is the factory owner a slave of his employees? If justice requires that each person have a minimum sustenance, “[p]roduction then becomes a requirement of justice.” [23] Then the failure to produce would be wrong, but if that were the case then why is the failure of the poor to produce even enough for their own survival not wrong, too? If it is a requirement of justice to produce, then the poor should be as much obliged to produce as the rich. This reasoning illustrates the contradiction inherent in the idea that the rich are obliged to sustain the poor. In reality, there are no rich people and no poor people, there are only people – some who produce more than others. As Thomas Sowell once wrote, “private property rights do not simply exist for the sake of people who own property.” [24] The poor, even though they own only a small amount of personal property, still benefit from the existence of private property. If you were poor, where would you rather live: in a country where property rights are respected or one where property rights are not recognized?

What does modern history tell us about countries where property rights are generally respected? We know that modern free market societies have never experienced famine. We know that Americans have been and are some of the most generous people on earth. [25] We know that the poor in America are often better off than the rich in some countries around the world. We know that the plight of the poor is usually much worse in countries whose economies are collectivist and socialist. We know that in societies where property rights are respected, there are fewer conflicts and greater wealth. We know that the Golden Rule, which tells us to treat others as we would have others treat us, provides us guidance. The Golden Rule urges us to respect other people’s property as we would have them respect our property. It also directs us to assist others who need assistance, as we would have others help us when we need assistance. And these guidelines are applicable to all mankind, rich or poor, healthy or sick, well-off or in circumstances of extreme necessity.

To continue our analysis, consider the distinction between acts of commission and acts of omission. No one normally decides who lives and dies. If Robinson Crusoe is alone on an island and cannot produce enough food to feed himself, nature and reality cause him to die of starvation. Why does the presence of other people change the responsibility for what has happened? Suppose they were on one side of the island and Crusoe on the other, and neither have knowledge of the other. Being ignorant of Crusoe’s situation, how could they be responsible for his death? And even if they knew he was starving, why would they be obligated to act? Their failure to act was not the cause of his death. It is Crusoe’s inability to produce enough for himself that results in his death. As Lysander Spooner pointed out in his ESSAY ON NATURAL LAW, individuals may owe many moral duties to their fellow human beings: “such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenseless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each man must be his own judge, in each particular case, as to whether, and how far, he can, or will, perform them.” [26] It may be immoral, vicious, even inhumane, to watch another person starve when you have more than enough, but it is not criminal to do so. Others may choose to ostracize you (for what they may call selfish behavior), but they do not have the right to put you in jail or force you to share your superfluities with others.

Do we have a duty to discover if people are dying from starvation in Africa? To what extent, if any, are we our brother’s keeper, whether he lives next door or on the other side of the earth? Are we responsible for the starvation of people in Africa who cannot produce enough to sustain themselves? I believe the answers to all of these questions are in the negative. We can choose to voluntarily commit resources to help our fellow human beings survive, but our failure to do so is not the same as killing them. Do people have positive rights to survive? “No.” As Tibor Machan observes, “Unfairness is built into the very idea of positive basic rights.” [27] It is impossible to secure positive rights for some (such as the right to food, health care or education) without trampling on the rights of others. Someone must produce first, and it is a matter of justice to recognize that the producers are the rightful owners of what they produce. “If we may force others to educate our children, to feed us, to provide us with health care, why not with their one eye when we are blind, their one kidney when both ours are damaged, their entire life if we need it badly enough? And if we are entitled to their support, when are they entitled to ours, and who has priority in all this?” [28] People’s needs are endless, particularly when they do not have to pay for their fulfillment. Are the needs of the producers any less valid than the needs of those who don’t produce?

Furthermore, who should decide these things? All human beings are equal when it comes to making decisions about their own bodies and property. He who says my property should be distributed to those in need, should first distribute his own wealth. He who says I should go to the aid of a drowning child, simply ought to go himself, rather than speaking up and urging me to go. That is why such people as Mahatma Gandhi and Mother Teresa are such shining moral examples to us. They first do themselves, what they ask others to do, and they certainly stand in stark contrast to politicians and elected officials who are not noted for leading ascetic life-styles.

The classical liberal conception of fundamental human rights is that such rights do not conflict. Such rights are “essentially negative injunctions which instruct us not to interfere with other people’s choices.” [29] It is clear that the voluntaryist definition of liberty is entirely negative. A man’s right to his life and property tell “us not so much what he may properly do but rather what others may not properly do to him. It is fundamentally a right not to be interfered with.” [30] The primary issue is an ethical one, a matter of justice: Where does A get the right to direct the use of B’s life and property? [31] Voluntaryism calls for the absence of coercion between man and man, and no more. It does not guarantee life, or success, or a full belly. It does not mean the absence of bad luck or the presence of good luck. It does not mean that a person will make the best use of his property. It simply means that other men must leave him alone. As F. A. Hayek put it, “to be free may mean freedom to starve, to make costly mistakes, or to run mortal risks.” [32]

The ancient Stoics believed that it was more important how one lived than whether one lived or died. Paraphrasing William Wallace, from the movie BRAVEHEART, every man dies only once. A person of integrity is more concerned with the means than with the end. He or she will give up his or her own life rather than take the life or property of another. To the person of self-esteem it may be a personal failure to have to beg for food, shelter, or clothing. However it would be a greater personal failure to steal. If one were in a condition of extreme necessity would it be better to become a thief and stay alive or to remain true to one’s principles and die if all refused your pleas for help? I cannot speak for others or make their decisions, but as for me, I would rather die an honest man than die a thief. How we live always trumps how long we live.

Footnotes:

[1] Garrett Barden and Tim Murphy, LAW AND JUSTICE IN COMMUNITY, Oxford: Oxford University Press, 2010, pp. 5 and 16.
[2] “Duty to Rescue,” www.wikipedia.org. Accessed February 10, 2013. See Section 1, “Common Law.”
[3] William Aiken and Hugh La Follette (editors), WORLD HUNGER AND MORAL OBLIGATION, Englewood Cliffs: Prentice-Hall Inc., 1977. See their “Introduction,” pp. 1-10.
[4] Scott G. Swanson, “The Medieval Foundation of John Locke’s Theory of Natural Rights: Rights of Subsistence and the Principle of Extreme Necessity,” XVIII HISTORY OF POLITICAL THOUGHT (1997), pp. 399-459.
[5] “Charity” in H. L. Mencken (editor), A NEW DICTIONARY OF QUOTATIONS ON HISTORIAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES, New York: Alfred A. Knopf, 1942, p. 156. Also see a similar translation in Brian Tierney, MEDIEVAL POOR LAW, Berkeley: University of California Press, 1959, p. 34 and footnote 21, p. 146.
[6] Swanson, op. cit., p. 401.
[7] ibid., p. 405.
[8] Tierney, op. cit, footnote 17, p. 146.
[9] ibid., p. 34.
[10] ibid. pp. 34-35.
[11] For the numerous quotations in this paragraph see ibid., pp. 37-38.
[12] ibid., p. 38.
[13] ibid.
[14] Alejandro A. Chafuen, FAITH AND LIBERTY, Lanham: Lexington Books, 2003, p. 44.
[15] ibid., p. 45.
[16] Swanson, op. cit., p. 408.
[17] James Tully, A DISCOURSE ON PROPERTY, Cambridge: Cambridge University Press, 1980,p. 132.
[18] John Locke, TWO TREATISES OF GOVERNMENT, edited by Peter Laslett, New York: The New American Library, First Printing as a Mentor Book, December 1965, pp. 205-206. See THE FIRST TREATISE, Chapter 4, “Of Adam’s Title to Sovereignty by Donation,” Sec. 42.
[19] Istvan Hont and Michael Ignatieff, “Needs and Justice in THE WEALTH OF NATIONS: An Introductory Essay,” in Istvan Hont and Michael Ignatieff (editors), WEALTH AND VIRTUE, Cambridge: Cambridge University Press, 1983, pp. 1-44 at p. 14.
[20] ibid., p. 25.
[21] Swanson, op. cit., p. 459.
[22] Howard Richards, “Productive Justice,“ in Aiken and La Follette, op. cit., pp. 165-179 at p. 171.
[23] ibid., p. 171.
[24] Thomas Sowell, “Forward to the Past?” on www.creators.com, circa December 18 or 19, 2012.
[25] See Carl Watner, “The Most Generous Nation on Earth: Voluntaryism and American Philanthropy,” THE VOLUNTARYIST, Whole Number 61, April 1993, pp. 1, 3-7.
[26] Lysander Spooner, NATURAL LAW; OR THE SCIENCE OF JUSTICE, Boston: A. Williams & Co., 1882, Part I, Section II, p. 6, reprinted in Charles Shively (editor), THE COLLECTED WORKS OF LYSANER SPOONER, Weston: M & S Press, 1971, Volume I.
[27] Tibor Machan, GENEROSITY: VIRTUE IN CIVIL SOCIETY, Washington DC: Cato Institute, 1998, p. 37.
[28] ibid.
[29] John Hasnas, “From Cannibalism to Caesareans: Two Conceptions of Fundamental Rights,” 89 NORTHWESTERN UNIVERSITY LAW REVIEW (1995), pp. 900-941 in Part IV, Section B “Features of the Classical Conception.” Also apparently published in 45 DUKE LAW JOURNAL (1995), pp. 84-125.
[30] James Sadowsky, S. J., “Private Property and Collective Ownership,” in Tibor Machan (ed.), THE LIBERTARIAN ALTERNATIVE, Chicago: Nelson-Hall Company, 1974, pp. 119-133 at p. 121.
[31] paraphrasing ibid., p. 124.
[32] F. A. Hayek, THE CONSTITUTION OF LIBERTY, Chicago: The University of Chicago Press, 1960, p. 18.