We reveal ourselves in our instinctive response to another’s need. When the President received reports of people breaking into stores in New Orleans, he saw a threat to property rather than a desperate need for food and water. Enough said.
In truth of course both were involved – lawless looting and desperate need. The extent of the latter became more apparent, when it came out that even the police had to break into stores to get crucial electronic equipment. A hundred miles north of New Orleans, a hungry man threatened to get his gun if the manager of the local Wal-Mart didn’t open it for business. How many of us wouldn’t do the same?
There is a legal tradition that justifies such action, and it comes from the theological teachings the President hearkens to on other matters, and also the Natural Law teachings so favored by rightward judges. It is called the doctrine of “overruling necessity,” and it says that property is secondary in times of urgent human need. “Necessity sets property aside,” wrote Thomas Rutherford, a noted 18th-century legal commentator, in his Institutes of Natural Law. At such times there is a “community of goods.”
In canon law, charity was not just a matter of voluntary well-doing. The very poor actually could demand help in time of need. As R.H. Helmholz pointed out in an article in the Catholic University Law Review (52 Cath. U.L. Rev. 301], there was no set procedure for enforcing this rule, which suggests it often was honored in the breach. But some canonists argued that the poor could use a procedure called denunciato evangelica, and denounce a rich man who refused to share. The church then could censure him, or excommunicate if necessary.
Natural law theory typically is invoked to establish the sanctity of private property. But as Rutherford said, it contains the seed of this exception too. Here’s John Locke in his Second Treatise on Government, which is a bible of the property rights camp. It is a “Fundamental Law of Nature,” he said, that the property claims of the rich man “must give way to the pressing and preferable Title of those who are in danger to perish without it.”
This thinking found expression in many areas of law and policy. It supported the doctrine that sailors in distress could find hospitality in a British port whatever their nation of origin. It applied to entire communities as well as individuals; thus the colonial laws authorizing the tearing down of buildings deemed fire hazards, without compensation to the owner. “If the people’s welfare and safety were the highest law,” William Novak observes in his book The Peoples’ Welfare, “it followed that when the preservation of society was at stake lesser rules and conventions gave way.”
A kindred world view is evident in the colonial laws permitting people to hunt and fish on other peoples’ land so long as it wasn’t fenced. When push came to shove, the need for sustenance came before abstract rights of property. What is most interesting though is how the proponents of the law of necessity justified it. It was not that a needy individual had a claim on what belonged to other people. Rather, it was that the needy person had a prior property right – a common property right – that trumped the latter one in this circumstance.
At some point in the distant past, the argument went, all property was a commons. From this common pool, individuals asserted private claims, justified in Locke’s version by their own toil upon the land. (That theory of course leaves a major glitch: what about the speculator who owns but does not toil? Adam Smith was aware of the problem. Landowners, he said, seek to “reap where they do not sow.” We leave that for another time.)
But these private claims are provisional not absolute. They are valid in normal times but not all times. “[I]n cases of extreme necessity,” observed Hugo Grotius, the noted 17th-century jurist, “the original right of using things, as if they had remained in common, must be revived; because in all human laws, and consequently all laws relating to property, the case of extreme necessity seems to form an exception.”
Natural law theory assumes that people consent to the impositions of society by a kind of implied contract. Property is part of that contract. “No one,” observes Novak, summarizing the commentators, “could be assumed to have consented away the right to use another’s property when self or social preservation were in jeopardy.”
None of this justifies wanton looting. A society cannot function with jungle law, at the bottom or the top. But it does make us question our arrangements for using the nation’s vast wealth for meeting urgent human need. If a new look at the law of overruling necessity arises from the destruction of Katrina, that would not be the worst thing.