(being continued from 19/12/15)
2. Normative Content: The Christian Law of Love
While there is little that explicitly sets out his thinking on the normative content of private property—whether it is rights-based or thing-based or a hybrid of the two—Sheptyts’kyi’s adoption of the Benthamite ‘no property without law’ proposition at least points towards an implicit acceptance of the rights-based conception of private property. If state legal systems must provide the environment, through law, for the existence and protection of private property, then it seems plausible to assume, in the light of the history of private property theorizing, that what is being protected is not things, but rights in relation to things enforceable against others. It is the state and its laws that provide for the enforcement of rights against others; without the state there could be no enforcement of rights, which really means that there are no rights at all. Still, as we have seen in considering his justification, there is sufficient use of terminology within Sheptyts’kyi’s writings to suggest that he also sees private property as integrally related to the things which are protected by state-established and enforced rights. Thus, Sheptyts’kyi’s understanding of the normative content of private property may be said to be a hybrid of rights- and things-based approaches.
The central element of Sheptyts’kyi’s work on the normative content of private property, however, and that which makes it explicitly clear that a rights-based conception dominated his view, are found in his writings about the social aspect of the institution. The social aspect of private property, as we have seen,124 is concerned with limiting the way in which the holder of private property exercises the rights enjoyed in relation to things in such a way as to prevent harm to the social good. The acceptance of a social aspect as being inherent to the institution of private property therefore points towards a rights-based approach. Sheptyts’kyi fully elaborates his understanding of the social aspect in his writings concerning the just distribution of wealth in society,125 especially in the pastoral letter On Christian Mercy.126
In On Christian Mercy, Sheptyts’kyi again draws a distinction between socialist and Christian views of property. The former, of course, took an abolitionist line and argued that justice bound the rich to perform specific acts of restitution and to divide up their possessions and restore to the poor what was rightfully theirs;127 this would lead, ultimately, to the elimination of private property. Sheptyts’kyi, however, argued that the Christian stance was founded upon the ultimate ethical principle of the law of love.128 The law of love—paramount in Sheptyts’kyi’s writings on social action—when combined with the dictates of justice, meant that while the rich were entitled to their property by virtue of divine and human law, they had at the same time a correlative duty toward the poor by virtue of the Christian requirement of fraternal love. Thus, as opposed to the socialist emphasis on justice alone, the Christian option promoted class harmony rather than class struggle.129 Sheptyts’kyi describes the promotion of the social good through the exercise of private property rights in these terms:
It is natural for people mutually to exchange services of Christian love and reciprocal kindness. In this way, justice and love, joined together under the just and light burden of Christ’s law, support very well the bonds of human society and lead its every member to work for his own private good and for the common good.130
For Sheptyts’kyi, the social aspect of private property, rooted in the law of love, translated into exercising private property use-rights to give alms to the poor, especially those whose lives were at risk as a result of the Nazi and Soviet occupations of Galicia.
While the socialists argued that to give alms was demeaning, for Sheptyts’kyi, when done in the proper evangelical spirit, ‘Christian almsgiving can only facilitate the mutual relations between rich and poor, and strengthen the bonds of mutual service.’131
Although such a stance was a difficult one to take at a time when there were many more poor than rich, Sheptyts’kyi saw a rather more even distribution of human needs and obligations between haves and have-nots. A Christian ethical stance, in his view, meant that the rich were not without their needs, nor the poor without their obligations:132 ‘[t]here is no one so rich as to need no assistance from others, nor anyone so poor as to be unable to give necessary and beneficial service to his neighbor.’133 Indeed, ‘[i]n our times and in the circumstances of the present moment there is the difficulty that few have plenty of anything, but many are in dire straits, hungry and even starving to death.’134 To support the call for Christian charity in the context of such widespread poverty and starvation, Sheptyts’kyi used the example of the widow’s mite (Mk. 12:11), arguing that almsgiving acquired a profound new meaning in difficult times:
Such gifts, although they may be insignificant in human terms and though they may pass unnoticed, penetrate the heavens…God looks upon the heart. Whoever cannot give more than a good word or a prayer or render a small service can, with the grace of God, receive a word such as that Christ pronounced to the Canaanite woman: “For this saying…[you may go your way; the demon has left your daughter”] (Mk. 7:29). It is not easy to replace deeds with words, for “not everyone who says to me, ‘Lord, Lord’ shall enter the kingdom of heaven, but he who does the will of my Father, who is in heaven.” [Mt. 7:21] However, it sometimes happens that before God a word acquires the value of an act.135
For Sheptyts’kyi, the social aspect revolves around the disposition of the heart, and this translates into the way in which individuals exercise private property rights for the social good. Private property, for Sheptyts’kyi, can only be seen in the light of the good it can do for others. And while it is justifiable by divine and civil law, the rights over things exercisable against others that constitute private property are not held without reciprocal obligations and duties to ensure that the have-nots receive what they need for the basic necessities required to sustain and protect life, that most fundamental and sanctified of all human rights.
And it is to this clash between the inviolability of private property and the sanctity of life that Sheptyts’kyi finally turns his attention in considering the normative content of private property. He argues that the Christian duty to give alms—to exercise private property rights in such a way as to benefit others—is proportionally related to needs in a particular situation, for ‘…the duty to give alms increases as the needs of one’s neighbor increase.’136 And when life itself is in danger, the right to life takes priority to any claims to private property: ‘[w]hoever finds himself in dire misery has the right to seek refuge even in another’s property, even without the owner’s consent.’137 Thus, the reciprocal obligations and duties to use private property for the good of others might themselves become rights in the hands of those who require that property to save their own life.138 The law of love, then, is the principle ethical principle that underpins the exercise of private property rights; for Sheptyts’kyi, the social aspect of private property is nothing less than the law of love:
The Church—whose task it is to preach the Gospel of love and to accomplish acts of mercy, and which, in the name of the Good Samaritan, must come to the rescue of and heal those who have fallen into the hands of thieves—must also remind the faithful of that difficult duty of Christian love and in every possible way encourage people to fulfill it.139
IV. CONCLUSIONS: AN APPLICATION OF SHEPTYTS’KYI’S THOUGHT ON PRIVATE PROPERTY TO CONTEMPORARY SOCIAL PROBLEMS
Sheptyts’kyi’s moral and social teaching on the institution of private property has its origins in the two main threats to that institution—socialism and communism—which he fought throughout his tenure as Metropolitan of Galicia. That teaching can be further divided into justification and normative content, which together constitute the main elements of all theorising about private property. In relation to the former, Sheptyts’kyi’s defence of private property against abolition or collecitivisation under state-sanctioned socialism or communism makes it clear that his thought lies in the natural law camp. Private property is an inherent and inviolable human right that flows directly from divine law and is given its existence and protection within any given society through the civil law of the state. For Sheptyts’kyi, while there could be no property without law, God alone takes priority to the state in the very existence of the institution.
As important as a sound justification of the institution is, though, of greater significance for a contemporary Ukrainian Catholic moral theology is Sheptyts’kyi’s understanding of private property’s normative content. Of paramount importance in this regard is the way in which Christians ought to exercise their private property rights over things: in other words, how ought one to use the private property which one obtains through divine providence and which enjoys the protection of civil law? For Sheptyts’kyi, we have seen that not only do rights flow from the enjoyment of private property, but also reciprocal obligations and duties. In the vernacular of private property theorising, these obligations or duties that go with rights to ensure that the latter are exercised so as to benefit the social good are collectively known as the social aspect of private property. For Sheptyts’kyi, these obligations take the specific form of giving alms, itself founded upon the Christian ethical principle of the law of love. For a contemporary moral theology, however, the specifics of almsgiving require broader purchase. How can we apply Sheptyts’kyi’s thought, developed in specific, difficult, circumstances to our own contemporary world?
The answer to this question remains in the law of love, for this ethical principle must inform the exercise of any private property right which a person enjoys in relation to a thing and which is enforceable against others. Thus, where Sheptyts’kyi speaks of almsgiving in wartime conditions to those who are starving and in danger of death, in our contemporary world, the same holds true for both the dispossessed who live in our midst—the homeless, the sick, and the suffering—and for the created world, the environment, in which we all live. For Sheptyts’kyi, the application of the law of love to the context in which he lived, worked, and wrote produced the requirement to give alms; charity of that kind was necessary to preserve the sanctity of human life. But in our contemporary context, the requirement to protect the sanctity of human life continues to require us to give alms in a different way. Our context requires a broader application of the law of love. And such an expansion and broadening of the law of love is possible.
To accomplish this expansion of Sheptyts’kyi’s understanding of the law of love, we must ask ourselves, ‘how must we use intangible things, whatever they may be, and which the civil law protects?’ Such intangible things may include, for example, the copyright or patent in relation to new drugs that may save lives in third world countries. Here, the law of love and the giving of alms dictates that the use of such intangible property be used to benefit the social good of the global community. Or, in relation to tangible things, such as land, machinery and fossil fuels, we must recognize that we have a choice as to how we ought to use them so as not to do serious and lasting harm to the created world and thus harm the life of all people, animals and the entire animate and inanimate environment. The Christian law of love dictates that land and machinery ought to be put to productive use, of course, but in so doing the good of the environment, and so of all people and animals and the animate and inanimate environment ought not to be detrimentally affected. The law of love and the giving of alms requires us in every case, in considering the use of any thing, tangible or intangible, to choose the good of others, whether that be persons, animals, or the environment.
Sheptyts’kyi’s giving of alms can, therefore, be applied to the way we exercise private property rights in our own contemporary world. Such an application requires that all exercises of private property rights must be undertaken within the broader context of the Christian law of love. Thus, while one who holds such rights is perfectly entitled to exercise them according to preference-satisfaction or self-seekingness, the law of love requires that they be exercised, when held by a Christian, for the benefit of others, to work for the social good, and not so as not to detrimentally affect others, which includes all people, animals and the environment.
Author: Paul Babie: B.A. (Calgary), LL.B. (Alberta), LL.M. (Melbourne), D.Phil. (Oxford); Lecturer in Law, University of Adelaide; Priest of the Eparchy of Ss Peter and Paul for the Ukrainian Catholics of Australia, New Zealand and Oceania; Barrister and Solicitor of the Court of Queen’s Bench of Alberta, Canada.
I would like to thank Bishop Peter (Stasiuk), Dr Stephen Downs, and Josephine Laffin for reading an earlier version of this article and for their helpful comments.
The Pastoral Writings of Metropolitan Andrei Sheptyts’kyi on Private Property
124 See above, n. 92, and corresponding text.
125 Krawchuk, Christian Social Ethics in Ukraine, 7.
126 Sheptyts’kyi, ‘Pro myloserdia’ (‘Tsile dilo…’) as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 224-227.
127 Ibid, 172 para. 26, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 225 n. 106.
128 On Sheptyts’kyi’s law of love, see Krawchuk, Christian Social Ethics in Ukraine, 208-227. On the necessity of taking account of the consequences of one’s actions and a Christian conscience within the law of love, see Krawchuk, ‘Sheptyts’kyi and the Ethics of Christian Social Action’, 249-256.
129 Krawchuk, Christian Social Ethics in Ukraine , 225.
130 Sheptyts’kyi, ‘Pro myloserdia’ (‘Tsile dilo…’), para. 28, 173, and see para. 24, 172, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 225 n. 107, and 224 n. 102.
131 Ibid, 173, paras. 27-28, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 225 nn. 108-109.
132 Krawchuk, Christian Social Ethics in Ukraine, 225.
133 Sheptyts’kyi, ‘Pro myloserdia’ (‘Tsile dilo…’), 173 para. 28, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 226 n. 110.
134 Ibid, 175 para. 34, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 226 n. 111.
135 Ibid, 175 para. 35, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 225 n. 112.
136 Ibid, 173 para. 29, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 227, n. 113.
137 Ibid, 174 para. 29, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 227 n. 114.
138 Krawchuk, Christian Social Ethics in Ukraine, 227.
139 Sheptyts’kyi,‘Pro myloserdia’ (‘Tsile dilo…’), para. 3, 165, as cited and translated in Krawchuk, Christian Social Ethics in Ukraine, 227 n. 116.