Pascal-Emmanuel Gobry, the poor man’s James Poulous, has an artistic piece against legal realism. For those unaware, legal realism is a descriptive account of economic institutions that recognizes that every single one of them are made up by legal and political bodies, including property law, contract law, patent law, copyright law, commercial law, corporate law, securities law, tax law, and so on. Gobry doesn’t argue against legal realism’s actual descriptive claims though; he just intimates in his usual impressionistic manner that he doesn’t like what it entails.
Here is Gobry:
I find myself much more at home with what I take to be the “generic” Catholic understanding, heavily influenced by Scholasticism, of private property as a kind of God-granted stewardship, which issues in both a natural right of private property and a moral duty to use this faculty in accord with the will of God.
Gobry knows that he can’t say that people have rights to property all the way to the bone because, so says the Bible, at the bone, everything belongs to God. God owns everything. So instead, he has to go for the view that private property is, not a down-the-the-bone claim, but instead a form of stewardship of things God in fact owns.
This is all well and good, but it buries the operative question: what belongs to who, and who is to say? Human beings are the stewards of the creation that God owns, but which human beings get to steward (“own”) which parts of creation, and why?
Saying someone has a “natural right of private property” and then moving on hand-waves over the entire matter in contention. How does one come to be the appointed steward of a piece of creation? If I think X entitles me to be chief steward of Z, and you think Y entitles you to be chief steward of Z, then what do we do? Do I get to be the private property owner (steward) of Z or do you get to be? And why? And who decides? Just saying the magic words “private property” doesn’t settle the question because it merely tells us that some person must “own” or “steward” Z, but it does not tell us who.
All legal realism does is note that, as a purely descriptive matter, it is legal institutions that determine who gets to steward what at any given time. It is legal institutions that say, as Augustine notes, this estate is mine to steward rather than yours to steward.
These economic institutions (or “stewardship institutions” if you will) can be constructed along hundreds of different lines. You can create laissez-faire stewardship institutions in which the state violently and brutally imposes upon the population things like property law and contract law, which it then forces everyone to follow whether they want to or not and whether they have different stewardship preferences or not. You can create horrific slave society stewardship institutions in which some human beings get to steward the parts of creation called other human beings. You can have mixed economy stewardship institutions, like we have now, in their various flavors: liberal market institutions (e.g. US and UK), continental market institutions (e.g. Rhenish system), social democratic institutions (e.g. Nordics and Austria).
All of these institutional sets involve the systematic allocation of pieces of the world to individuals and non-individual corporate entities. All of them successfully allocate out the stewardship of pieces of God’s creation, one way or another.
The normative question for us is: which stewardship institutions are the best ones? If we are going to allocate out the stewardship of creation (instead of allowing everyone to steward everything in common, as in Eden), then we have to decide which system we are going to use to do that. Of all the possible sets of economic institutions, which ones should we legally impose in order to govern the pieces of creation within our society?
As I understand it, the Christian Legal Realist position favored by Elizabeth Stoker Bruenig (who also has a response on this) is that, in judging which stewardship-allocation system to legally impose, Christians should look towards general Christian ethical principles. That requires, at minimum, the selection of economic institutions that most ensure the greatest well-being of the poor and the least among us. Our current economic institutions do not do that, and so, on this view, we should change them.