50Note that the passages which the author (Tigay) is referring to here are from the Jewish canon. They are arranged somewhat differently in the Christian canon as Exodus 22:5–6. E.g. cf. N.M. Sarna (The JPS Torah Commentary: Exodus, The Jewish Publication Society, Philadelphia/New York/Jerusalem, 1991), p.131 with Meeks et al., p.121.
51J.H. Tigay, The JPS Torah Commentary: Deuteronomy, The Jewish Publication Society, Philadelphia/Jerusalem 1996, p.219. A similar practice was apparently observed in medieval Britain with respect to the gathering of firewood. As noted by Crystal, the ‘most likely origin’ of the phrase ‘by hook or by crook’ lies in a medieval countryside practice which gave people certain provision for this, from the forests which (all) belonged to the king: ‘They were allowed to use branches that had fallen on the ground. And they were also allowed to cut any dead wood from a tree if it could be reached with a shepherd’s crook or the hooked tool used by a reaper’ (D. Crystal, By Hook or By Crook: A Journey in Search of English, HarperPress, London, 2007, p.11). However, the penalties for otherwise cutting down trees without permission were ‘ferocious’ (ibid.). I am grateful to my wife, Karen, for bringing this point to my attention.
52Tigay cites (Tigay, p.388 note103) as the relevant Christian gospels, Matthew 12:1, Mark 2:23 and Luke 6:1 (e.g. see Meeks et al., pp.1878, 1921 and 1967 respectively).
53The Halakhah are the ‘legal enactments and precepts with the elaborate discussions whereby decisions were reached’, which are contained in the Talmud. They are distinguished from the Haggadah, or ‘non-legal interpretations’. The Talmud itself ‘is composed of the Mishnah, the oral law which was in existence by the end of the 2nd century AD’, and ‘the Gemara, the comments of the Rabbis from AD 200 to 500 on the Mishnah’ (Douglas and Hillyer et al., p.1515).
55G.H. Sabine and T.L. Thorson, A History of Political Theory (4th ed.), Dryden, Hinsdale, 1973, p.486.
56Note, though, that it is important not to overly stress the significance that this ‘ideal’ may in fact have had. Not only is it a very generalised suggestion as to what medieval views may have actually been, but it thereby obscures the many subtleties and contestations which seem evident in all historically instantiated thought, including that of the medieval period. Nevertheless, it is fair to say that medieval thinkers tended to place far more emphasis on communal and divine obligation than does our own contemporary society.
58Of course, once such a theory of the origins of private property becomes linked to unfettered claims to inalienable and inviolableexclusive property rights, then such a theory clearly comes into conflict with both Deuteronomic ruling and medieval ideals.
59No precise citation is given by the authors; but it seems clear that the reference is to the following gibe at the Hobbesian doctrine: ‘And here we have the plain difference between the state of nature, and the state of war, which however some men have confounded, [yet] are as far distant, as a state of peace, good will, mutual assistance, and preservation, and a state of enmity, malice, violence, and mutual destruction are from one another.’ (Locke, p.124 [II.iii.19]).
60Sabine and Thorson, pp.485–486.
62There is a very large body of literature which supports this or related claims: ranging from the Enlightenment fascination with feral children and the requisite role which sociation plays in our development as fully human individuals; to existential demonstrations of the incoherence of monadic and ultimately solipsistic egos; and also to biological and ecological understandings of our inextricable dependencies on the natural world.
63Locke, pp.127–128 [II.v.26].
64One could disagree of course, essentially on the same grounds which Marx and Engels use to criticise M. Destutt de Tracy and Max Stirner in The German Ideology. The former they note claims that ‘nature has endowed man with an inevitable and inalienable property, property in the form of his own individuality’ (K. Marx and F. Engels, The German Ideology: Part One – With Selections From Parts Two and Three and Supplementary Texts, Lawrence & Wishart, London, 1970, p.100). It is interesting to note how close this is to Locke’s characterisation of inherently individual property ownership, and in that context the criticism that both de Tracy and Stirner effectively just employ a play on words to establish this relationship. This includes the accusation that ‘“Stirner” refuted the communist abolition of private property by first transforming private property into “having” and then declaring the verb “to have” an indispensable word, an eternal truth, because even in communist society it could happen that Stirner will “have” a stomach-ache’ (ibid. p.101). However, this criticism seems somewhat unfair if it is to be applied to Locke. What Locke claims above is no simple play on words, but rather the quite ordinary observation that if you appropriate (and especially consume) something from a common use (or as it now also characterised, ‘common pool’) resource, then ipso facto that something is no longer available for someone else to appropriate. This is fine as long as the resource is widely available, and demand does not exceed that availability. However, once demand does exceed in this way, steps must be taken to try to either increase availability or reduce demand, or in the absence of either, to restrict access (e.g. via protected property rights). This seems so obvious and so basic, that it might even be considered an economic truth.
65On the dating of these laws vis-à-vis Roman law, even noting that the Book of Deuteronomy was ‘revisited’ and redacted in the 5th century BCE, Rome (and with it the eventual primacy of Roman law) didn’t even become a power until the 2nd century BCE.
66Sabine and Thorson, p.486.
67See p.443 of S.G. Swanson, ‘The Medieval Foundations of John Locke’s Theory of Natural Rights: Rights of Subsistence and the Principle of Extreme Necessity’, History of Political Thought, vol. 18 no. 3, 1997, pp.399–458.
68ibid. p.417. Swanson identifies the Latin source of this translated quote as De potestate regali et papali (ibid. p.417 note 42). Swanson also notes that ‘John of Paris borrowed large parts of his treatment of property in De potestate regali et papali almost verbatim from Godfrey of Fontaines’ quodlibets’, and that whilst they were antagonists on one particular controversy, ‘they were of one heart and mind in disseminating Thomas Aquinas’ theories of property and the constitutionalist implications they found in those theories’ (ibid. p.416 note 41).
70See p.132 of J. Coleman, ‘Pre-Modern Property and Self-Ownership Before and After Locke: Or, When did Common Decency Become a Private rather than a Public Virtue?’, European Journal of Political Theory, vol. 4 no. 2, pp.125–145.
72Locke, p.128 [II.v.27].
74Note that this emphasis is quite different from the otherwise unremarkable belief that individuals are ultimately responsible for their own actions. In religious eschatology, this was already commonplace in the belief that individuals are judged, whether at the end of their lives or at the end of days per se, on this basis (e.g. consistent with the depictions of Christian judgement in the medieval mystery and other religious plays such as Everyman, but also with other far more ancient, and indeed long-forgotten religious beliefs and traditions, such as those which are depicted in the Egyptian Book of the Dead). Note also that even for Protestant reformers like Müntzer, the relationship with God was with the community of the faithful, sans any privileged mediation through a clerical class.
75See Locke, pp.135–137 [II.v.40–43].
77ibid. p.452 note 132.
78See especially Marx’s discussion of the various declarations of and constitutional ‘rights of man’ (Marx, ‘On the Jewish Question’, p.227 ff.), and his claim that they are all quite simply ‘of egoistic man, of man separated from other men and from the community’ (ibid. p.229).
79K. Marx, Capital: A Critique of Political Economy (vol. 1), Penguin, 1976 (reprinted 1990), p.178. I am grateful to the Australian National University Capital reading group for the opportunity to consider and debate this passage.
80This point is important, because whilst not specifically excluding using violence against others in order to possess (i.e. their) commodities, the actual subject of Marx’s claim here is the use of ‘force’ against the commodities themselves. This resonates less with social actions such as theft (sanctioned or otherwise), and more with the understanding of freely appropriating things through the use of one’s own labour, i.e. which before had no exclusive ownership.
81A secularised form of this dedication is still preserved in the notion of community or military service. This includes the associated notion of doing one’s ‘duty’. But it also exceeds this in the sense that one can serve with distinction by going beyond ‘the call of duty’. This, in turn, resonates with the religious idea of earning ‘merit’ through ‘good works’. Whilst recognising that such works are only the outward expression of an ‘inner’ dedication (e.g. per Luther and other Protestant reformers, who saw religious salvation as possible, not through works, but only through God’s grace alone), it would still seem the case that if one is dedicated to one’s service, then this should have some outward sign. This is essentially why the notion of doing good works persisted even with the Protestant Reformation.
82I have taken the term ‘universal saleability’, which I understand to be the reduction of everything to a commodity for potential sale or trade and private accumulation, from Mészáros. Specifically, see Mészáros, pp.33–36.
83I am grateful for this fact to a seminar which Prof. Brenda Walker presented to the Australian National University School of Cultural Inquiry Seminar Series on 19 September 2011, entitled A Survivor Makes Notes on the Ark.
84Meeks et al., p.13.
86I am grateful for this way of putting things to my fellow Capital reader, Mathew Abbott, whose very fine thesis on Agamben is partly framed by the claim that ‘If there is no reason for being, then being is gratuitous; the word ‘gratuitous’ shares its etymological root with ‘grace’.’ (M. Abbott, ‘The Figure of this World’, PhD thesis, University of Sydney, 2011, p.6).