Truly conservative jurists tend to invoke Natural Law. Well…..
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. Hereâ€™s John Locke in his Second Treatise on Government, which is a bible of the property rights camp. It is a â€œFundamental Law of Nature,â€? he said, that the property claims of the rich man â€œmust give way to the pressing and preferable Title of those who are in danger to perish without it.â€?
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. â€œIf the peopleâ€™s welfare and safety were the highest law,â€? William Novak observes in his book The Peoplesâ€™ Welfare, â€œit 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 peoplesâ€™ land so long as it wasnâ€™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 â€“ a common property right â€“ 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 Lockeâ€™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 â€œreap where they do not sow.â€? We leave that for another time.)
But these private claims are provisional not absolute. They are valid in normal times but not all times. â€œ[I]n cases of extreme necessity,â€? observed Hugo Grotius, the noted 17th century jurist, â€œthe 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.â€?
Natural law theory assumes that people consent to the impositions of society by a kind of implied contract. Property is part of that contract. â€œNo one,â€? observes Novak, summarizing the commentators, â€œcould be assumed to have consented away the right to use anotherâ€™s property when self or social preservation were in jeopardy.â€?