The Scholastics on property rights and emergencies

Apropos of our earlier discussion on the Spanish Scholastics and Rights in an Emergency, the Mises Institute has another serendipitous post on the original economists' views on what happens when property rights and extreme need intersect:

A common question put to advocates of private property is some variation of the "emergency" situation, in which someone's life or liberty seems to hang on violating property rights. A typically contrived example is this: You accidentally fall off a high building but catch a hold of someone's flag pole. . . . Can they require you to let go of their private property? The point of such questions usually seems to be to use an edge case to throw the whole principle of private property into doubt. In a section new to this edition of Chafuen's book, Chafuen summarizes the Scholastic principle of "extreme need" that addresses these kinds of cases.

Distinguishing between ownership (dominium) and use, the Scholastics argued that, "Even in case of necessity, when individual property might be lawfully seized?in the name of another's hunger or of the common good?yet the owner's right to property remained and endured." (p. 42) Is this a meaningless distinction? Not at all. Though a person in extreme need might ethically make use of someone else's property they ought not to simply steal it. Martin de Azpilcueta wrote that he "who takes something in extreme need, is obliged to make restitution when he has a chance; independently if he has goods in another place or not, and even if he had or had not consumed the goods." (p. 44)

This approach sounds eminently reasonable, in that it doesn't require the declaration of any 'state of emergency' by a central source (which Jonathan was rightly skeptical of, given the terrible acts Indira Gandhi committed under such a declaration), but rather more of a common law type conception of what would constitute 'extreme need' (with the option to sue to settle disputed claims). In either case, the needy would still owe restitution to the property owner for the use.

Sounds about right.

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Martin de Azpilcueta wrote

Martin de Azpilcueta wrote that he "who takes something in extreme need, is obliged to make restitution when he has a chance; independently if he has goods in another place or not, and even if he had or had not consumed the goods."

I would add the additional condition that the standard for restitution should be that the victim is marginally glad that the violation of property rights occurred. Of course this is subjective, but that should be the standard for the ruling for any common law court.

OK. What about the situation

OK. What about the situation in which the manner in which the property is used is itself a danger to the community? Suppose one refuses to allow limited burining of the tinder underbrush on one's property, thus permitting the buildup of sufficient fuel to create a "crown fire." Such a situation would endanger rigthts in surrounding properties. What then? Is compensation required when a property owner is forced to allow small, "preventative" fires?

Is compensation required

Is compensation required when a property owner is forced to allow small, "preventative" fires?

I wouldn't think so. In that situation, the property owner is threatening the property rights of his neighbors, and thus common law would (hopefully) require him to remove that threat. I don't see how he would be owed compensation.