Comte and Dunoyer Chap. 6

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A. COMTE'S THEORY OF PROPERTY - TRAIT� DE LA PROPRI�T� (1834)

The long-awaited sequel to his Trait� de l�gislation, the Trait� de la propri�t�, only appeared in 1834 although much of it had already been written at the time the first part, the Trait� de l�gislation appeared. Although Molinari's later description of Comte's work on property as "an arsenal full of all the arms necessary to combat the retrograde errors of communism"[569] is quite an accurate description of how later liberals were to use Comte's work, it is not an accurate description of Comte's intention in writing it. Whereas from the mid-1840s onwards Molinari, Bastiat, Tocqueville and Dunoyer became increasingly concerned by the rise of the labour movement and the appearance of socialist critiques of property and the free market, Comte's original intention was to engage in a debate which emerged in the Restoration period from quite a different quarter. Whilst liberals in the 1840s and 1850s were looking over their left shoulders at the socialist movement, Comte and Dunoyer in the 1820s were looking over their right shoulders at the challenge to liberalism from defenders of the restored monarchy and the ancien r�gime. The intellectual debates which took place in the two periods, separated by some 20 years, were different in both focus and content and thus should be treated separately. Because Comte's work on property was conceived and written (but not published) during the Restoration it will be discussed in that context - as a sequel and continuation of his work on property. Discussion of the work of Comte and Dunoyer after the 1830 July Revolution and its impact on Proudhon and Marx on the one hand and other liberals on the other will be reserved for the concluding chapter of this work.

Comte originally had intended to publish the Trait� de la propri�t� along with the Trait� de l�gislation in 1826, since both works were part of the same project. As he put it in 1834, the treatise on property was only a "continuation" of the treatise on legislation which together composed a study of theoretical and practical jurisprudence based upon an "empirical" method derived from Bentham, Say and Malthus. In the preface to the Trait� de la propri�t�, written in Paris on 30 March 1834, Comte took the opportunity to remind his readers of his aims in writing both the Trait� de l�gislation and Trait� de la propri�t�. He wanted to do this because he believed that the intervening years, during which the liberal July Revolution of 1830 had taken place, had raised a whole series of new issues and had clouded those which had preoccupied the French in the late 1820s. He also wanted to remind his readers that the two works were intimately connected and that they could not understand his new work on property unless they had read and understood the previous work on legislation.[570]

In spite of some scattered remarks concerning contemporary restrictions on the freedom of association, the main issue of the Trait� de la propri�t� was nothing less than the theoretical basis of liberalism, namely to analyse in considerable detail the theoretical and historical foundations of liberal thought. Naturally, a vital part of this formulation had to deal with the rejection of the Roman legal tradition with its toleration of slavery as a basis for a sound theory of property law, the legitimacy of the original appropriation of property, the problem of the land claims of original inhabitants, the emergence of private property out of communal "national" property so that no one else is harmed, and the emergence of wage labour in a similar non-coercive manner, and how property might appear in a modern industrial society. Comte's treatment of property is a complex combination of legal, economic, sociological and historical insights each component of which needs to be appreciated. In particular, the historical and evolutionary aspects of his arguments are interesting. His concept of property changes from the early communal property of the hunter-gatherer stage of production, to the private property in land of settled agriculture, and to the complex and varied nature of private property in industrial society. At each stage of economic and social evolution Comte puts forward slightly different legal and economic arguments in favour of the kind of property suited to individuals living under a particular mode of production. It is an argument which nineteenth century Marxists would find familiar even though the perspective was very much a liberal one in favour of increasing amounts of private property.

B. THE DEBATE ABOUT PROPERTY DURING THE RESTORATION

A good discussion of the idea of property and the changes in its meaning under the ancien r�gime and in the Revolution is provided by William H. Sewell, Jr.[571] Unfortunately Sewell terminates his discussion at the time of Napoleon's rise to power and he says virtually nothing about the important debates taking place during the Restoration and early July Monarchy. He jumps straight to the 1848 revolution with little attempt to deal with the contribution of the French political economists and jurists. The former still awaits their historian, the latter has been discussed by Donald R. Kelley and Bonnie G. Smith.[572]. As Kelley notes in a tantalisingly brief discussion, the question of property became an issue in the Restoration period for a variety of reasons. It was discussed partly as the general process of evaluation of the meaning and consequences of the French Revolution, Napoleon's Empire and the Restoration of the Bourbon monarchy which was taking place at this time. In Kelley's opinion the

Ownership had undergone great changes in the previous forty years at the hands of various revolutionary governments. New property owners had emerged from the sale of national property and the confiscated church and emigr� land. New forms of government regulation of property had emerged with policies like the Maximum price controls of the Jacobins and requisitioning and confiscation for the army. Napoleon's efforts to impose a continental blocade on British imports also impinged on property. And of course, with the restoration of the Bourbons, there was the threat that property acquired from the sale of emigr� and church land would be returned to its original owners, thus introducing a veritable war between the "anciens" and the "nouveaux propri�taires" in the French courts.[574] In addition, post-revolutionary liberalism was in a considerable state of flux as it attempted to come to terms with the political and economic consequences of the French Revolution, Napoleon and the Restoration to learn to deal with other problems which cannot be dealt with here, such as the decline of Enlightened ideas of natural rights and the rise of Benthamite utilitarianism, the problems posed by the development of manufacturing and the factory system, and the real possibility of seeing liberal ideas adopted by governments seeking political reform. With such turmoil in the minds of the French in the 1820s and 1830s it is not surprising that the nature of property would be discussed, that liberals would take a leading r�le in this discussion, and that history would be used by all sides in an attempt to resolve the disputes. Kelley correctly sums up the importance of the Restoration in the following passage:

Another reason for the question of property becoming a serious issue in the Restoration and July Monarchy periods is partly a result of the rethinking of Adam Smith's ideas in the light of the Industrial Revolution currently under way with some vigour in Great Britain and which was to begin in earnest in France considerably later in the 1840s - the decisive years of economic "take off" according to David Pinkney.[576] Nevertheless the implications of industrialisation were obvious to those who observed what was going on across the channel or who were aware of the faltering and uncertain French experiments with factory production, railway building and so on. The chief exponent and reformulator of Smithian economics in France was Jean-Baptiste Say whose many editions of the Treatise on Political Economy (first edition 1803)[577] did much to introduce the new political economy, with its underlying assumptions about the legitimacy of private ownership and the benefits it would bring in terms of greatly increased productivity, to a new generation of Frenchmen (Comte and Dunoyer being typical of those who discovered Say and political economy in the immediate post-1815 years) and which became the virtual bible of the economic liberals in France. Say continued to influence people, this time a much broader audience of businessmen, intellectuals and land owners, with his lectures at the Ath�n�e during the 1820s, which were well attended by young liberals, and the book based on those lectures, the Complete Course of Practical Political Economy (1828-30).[578]

The chief innovation of Say was to realise the vital importance of manufacturing (or "industry" as he preferred to call it) and the wealth-creating ability of entrepreneurs in the economy of post-revolutionary Europe. Fundamental to any discussion of the economic contribution of manufacturing and entrepreneurs was the assumption that property rights in capital invested in and earned from factories were legitimate. Similarly the legitimacy of wage labour in the manufacturing system was not questioned. Yet, as Say was to say on several occasions, his work was not a work of jurisprudence or philosophy, thus he was under no obligation to provide the theoretical foundation for his political economy, in particular a defence of property rights. It was not the province of the political economist to do such a thing, which was best left to the "speculative philosopher," as Say put it in a small chapter "Of the Right of Property" in his Trait� de l'�conomie politique.

Say goes on to discuss the various ways in which the state transgresses the right to property through taxation, regulation, slavery, or by incompetently protecting property owners from theft or fraud. But it is clear that Say refuses, as an economist, to offer a theoretical defence of the legitimacy of property rights (the task of the speculative philosophers) or to state how the law might be best used to protect property (the task of the legislator). The closest Say comes to overstepping his self-defined boundary as a pure political economist is his use of interesting historical asides in many of his chapters to trace the historical development of the institution or practice under discussion. For example, he assumes the mantle of an historian of property in his asides dealing with money, slavery, colonisation, regulation of industry, tariffs and so on. Thus Say is willing to be an historian occasionally but not the jurist, the legislator or the philosopher.

If Say was willing to accept blithely the legitimacy of property and wage labour in the industrial system, the critics of economic liberalism were of course not so disposed. Not surprisingly socialists quickly identified the key issue of dispute with liberals as the distribution of land and other property, the legitimacy of interest on capital invested in factories, the profit drawn by owners, managers and entrepreneurs, and the wages paid to manual labourers. It is this rejection of the property rights and productive economic r�le of the capitalist entrepreneur and the justice of wage labour especially which gives continuity to early socialism, so divided as it was by other issues. It was also the foundation upon which Karl Marx was to build his self-proclaimed "scientific" socialist critique of liberal capitalism.

The task to defend property on a theoretical and historical basis, which was refused by Say and the political economists, is the task Charles Comte wanted to achieve in his treatise on property. As Comte no doubt realised, liberal political economy was in an extremely vulnerable position if it lacked such a defence of property upon which so much depended. All the achievements of economic theory concerning the productivity of the division of labour, the factory system, the key r�le of the entrepreneur, the warnings about economic regulations hindering innovation and productivity would be for naught if socialist and conservative critics were correct in their reservations about the legitimacy of property rights. Without a secure theoretical footing in property rights critics of liberal political economy might have a case for rejecting laissez-faire and the factory system in the name of justice and morality. A reasonable person might, after all, consider rejecting economic liberalism and forgo the benefits of greater productivity in the name of justice for those who have been deprived of the fruits of their labour. The task of Comte in the Trait� de l�gislation and the Trait� de la propri�t� was to short circuit this possibility by demonstrating three things: firstly, that interference by the state over the centuries in property ownership has had dire consequences for justice as well as for economic productivity; secondly, that property is legitimate when it emerges in such a way as not to harm anyone; and thirdly, that historically some, but by no means all, property which has evolved has done so legitimately, with the implication that the present distribution of property is a complex mixture of legitimately and illegitimately held titles.

The latter point is of great importance as it goes part of the way to meeting the socialist critique of liberal property rights yet at the same time providing a theoretical underpinning to protect political economy and the legitimacy of the industrial system. Comte's theory can achieve this remarkable feat because of his theory of legitimate property rights which involves a two-step process. Previously unowned property, or property collectively owned by the tribe or "nation," only becomes legitimately owned property if it is acquired in a way that harms no one else in the process. This can be done by a Lockean process of mixing one's labour in some way with the object to be acquired, thus acquiring title to it, or it can be done, as in the case of land being enclosed for private use, only if those being excluded are not left worse off. Both methods, in Comte's view, create an original just title to the property.

The second step in the process towards the legitimacy of presently held property is that of transmission. Once property has been acquired originally it can be exchanged or bequeathed to others by the legitimate owner. So long as coercion is not involved, this process will result in a distribution of just property titles. However, as soon as force intrudes, whether by conquest, theft, enslavement, extortion and so on, the cycle is broken and what was once legitimate property becomes illegitimate. Comte does not spend a great deal of time discussing the transmission of property since he believes that existing legal conventions have worked out quite adequate methods of passing property in a non-coercive manner from one owner to another. What is lacking, in his view, is a satisfactory method of distinguishing between property which can demonstrate an unbroken line of legitimate transmission from an original legitimate acquisition some time in the past from property which cannot do so. The political problem of the present, after the confusion caused by the Revolution and the sale of biens nationaux and the Restoration threat to return land to its previous owners, namely the church and the landed nobility, was that a great deal of property was of a "mixed" nature. Some property, especially the landed estates of the old nobility, had not been acquired in the manner laid down by Comte and was hence illegitimately owned. Other property was a mixture of legitimate and illegitimate components, some property having been acquired justly and other property having been unjustly acquired through coercion. On the other hand some forms of property were completely just and legitimate and the possession of them could not be faulted. The difficult question was to be able to separate the justly from the unjustly acquired property, to return the unjustly acquired property to its original owners, and to create a legal system which would prevent such problems from occurring again.

So where liberals like Comte came part of the way to answering the socialist critique of property, especially in landed property, was the agreement that much land ownership in the present was the result of past acts of violence and hence was illegitimate. This was a view held by radical liberals such as Thomas Hodgskin and Herbert Spencer in Britain and Augustin Thierry and Fr�d�ric Bastiat in France.[580] Where they parted company with the socialists was their belief that not all property had been or would be of necessity acquired unjustly. For example, the liberals believed that the new forms of wealth or property being created every day by the industrial system were perfectly legitimate and could not be attacked without causing injustice to the owners and widespread poverty and disruption to others. Comte's theory of property therefore should be viewed as an attempt to plug an important gap left by the refusal of the political economists like Say to provide an adequate foundation in property rights for their economic theory. His theory should also be seen as an attempt to answer the objections of critics who argued that because some property titles were illegitimately acquired that this implied or meant that all property rights per se were illegitimate. Comte's solution provides a stimulating defence of property with interesting implications for the rights of native inhabitants to their traditional land, an innovative use of the Lockean proviso in the original acquisition of property, and a defence of the factory system and wage labour with obvious contemporary relevance.

C. COMTE ON THE LEGITIMACY OF PRIVATE PROPERTY AND WAGE LABOUR

From the mass of material Charles Comte provides in the bulky two volume work on property, Trait� de la propri�t�, only a few items have been chosen for discussion. They concern the following:

A feature of Charles Comte's discussion of law in the Trait� de l�gislation, the companion volume of his magnum opus, is his sociological approach. He deals with what is now referred to as the "sociology of law" at considerable length. Particularly interesting is his examination of how social structure is influenced by legislation on property and individual action and how the form legislation takes is in turn influenced by social structure. These insights are developed in his lengthy analysis of slave societies from the ancient world up to the present. However the intention of Charles Comte's Trait� de la propri�t� is to ask more fundamental questions about the nature of property, how it arose, how it might be defended from criticism, and how property might evolve in a truly free or "industrial" society. It is this more theoretical examination of the nature of property which Comte undertakes in his 1834 work Trait� de la propri�t� which will be discussed here. The aim of the work was to present a theory of property based upon the universal principles of man's nature which would avoid what he thought were the "barbarisms" remaining in the legal tradition inherited from the Romans and the injustices and often arbitrary nature of state-created property law as it evolved under the ancien r�gime and in the Civil Code. By spinning out at some length the implications of property rights for the emerging industrial economy Comte hoped to reveal and remove the weaknesses of Roman law and the Civil Code and thereby lay the foundations for a more secure regime of property for the future. Another purpose of Comte's Trait� de la propri�t� was to subject the French legal tradition to severe scrutiny in order to purge it of its "slave elements." Once the bias in favour of slavery had been eliminated the law of property appropriate to a market society could be developed. It was a massive task and in the 1,000 odd pages of Trait� de la propri�t� Charles Comte tried to elaborate a legal theory of property which ranged over the problems of the origin of property, the nature of tribal property, the emergence of private property in land, the problem of public goods (dealing with forests, rivers, seaboard), the extent of national boundaries, the privatisation of national lands, patent and copyright laws for advanced industrial economies, intellectual property rights, the protection of property rights, criticism of the civil code, and an analysis of some modern critics of property.

D. THE CORRUPTIONS INTRODUCED INTO THE ROMAN LAW THEORY OF PROPERTY BY THE EXISTENCE OF SLAVERY

In the Trait� de la propri�t� Comte again took up the problem of slavery and law. Here he developed the argument that French property law had a fatal weakness at its very heart because it owed so much to Roman law concepts of property and ownership. It was inconceivable to him that a modern, industrial, free market economy could use a legal system originally designed by and for slave owners. Thus the purpose of the Trait� de la propri�t� was to provide a theory of property and legislation which would be free of such burdens and thus be more suitable for a free market, industrial society.[581] From the very beginning of the Trait� de la propri�t� Comte's fascination with slavery and its deleterious consequences for social progress, which had been such an important theme in the previous volumes of the Trait� de l�gislation, was revealed again. The dead hand of the past, in the form of continued respect for legislative theory and practice based upon Roman law, gave Comte an explanation for the sorry state of property theory in post-revolutionary France. Comte believed the methodology of the scientific revolution of the sixteenth and seventeenth centuries had not yet penetrated as far as the study of law and moral philosophy or "morals." Whereas the authority of Aristotle in the fields of biology and astronomy had been long ago challenged, the "authority of books" from the Greek and Roman period still held sway in nineteenth century French legal theory and practice.[582] In his opinion, the theories of property developed by men who were themselves slave owners and only barely out of the stage of economic barbarism[583] contained within them a prejudice in favour of servitude in general and chattel slavery in particular. This pro-slavery bias completely contaminated the tradition of Roman property law and rendered it unsuitable for use in modern market societies. Comte believed that the Greek and Roman assumption of the legitimacy of slavery made it impossible for them to admit the existence of universal principles of human rights based upon human nature. Not only did this prejudice mean that the ancient jurists tolerated the existence of force in labour relations but also within the family between husband and wife and father and child. Comte believed that, as long as Roman concepts continued to influence French law, violence in the market and in the family would continue.

What made modern, i.e. post-revolutionary, society different from the ancient world was the attitude towards the satisfaction of needs. This is a variation of the liberal theme of the fundamental difference between the ancient and modern worlds and their concept of liberty, which had been developed by Benjamin Constant. According to Constant, the liberty of the ancient world was the right to participate in the political life of the city-state with little concern for the "content" of that political activity.[584] Modern liberty, on the other hand, was explicitly concerned with the protection of individual rights and the circumscribing of state power as the most dangerous violator of individual rights. The outward form of political power (whether monarchical, aristocratic or democratic) was far less important than the protection of the individual's legal rights. Both Comte and Dunoyer absorbed Benjamin Constant's hostility towards the ancient world and extended it into the economic sphere, in particular the vital importance of slavery to the economy and the legal system.[585] Unlike many, Comte and Dunoyer did not seem to favour commercial "Athens" over militaristic "Rome." They appeared to condemn ancient Greek and Roman society about equally because both were slave societies.[586]

With the emergence of market society the "natural" tendency was to use and appropriate material things to satisfy our needs and to free ourselves from the violent acts of our fellows or, in other words, to pursue the liberal agenda of the Enlightenment and early nineteenth century liberalism. The ancient Greek and Roman attitude towards the satisfaction of needs was so different that it made it impossible to use their legal concepts in post-revolutionary society. According to Comte, the classical view was to satisfy needs through what he called "the intermediary of other men"[587] who were the property and the "tools" of their masters. Whereas the struggle in the modern world was against the physical world to get the resources to satisfy our needs, in the ancient world the struggle to get resources had been between men - primarily between slave owners and their slaves, but also between Roman and barbarian and conqueror and conquered. Of course, Proudhon and other socialist critics of liberalism would argue that there was little difference between being an "intermediary" or "tool" of a factory owner and being an "intermediary" or "tool" of a Roman slave owner. But this missed the point of Comte's observation of the profound differences between the ancient and the modern world, which accorded equal legal and civil rights to all individuals, whether labourers or capitalists. No one in law was to be treated as a thing. Marx may have railed against the reification of labour as a mere commodity to the disadvantage of the labourer as an autonomous and free individual, but Comte's and Dunoyer's ideal of free labour was quite different from Karl Marx's caricature. The reason why Comte despised the heritage of the ancient world as much as he did was precisely because it treated the labourer as a thing and not as an autonomous individual with legal rights. By contrast, in a market economy labourers were the legal "owners" of their labour, which was contracted for by capitalists and could not be legally coerced.

In his brief survey of the history of Roman property theory Comte argues that the legal prejudice in favour of slavery was used by numerous Roman and Byzantine Emperors in their codifications of the law to maintain the subjection of individuals as well as entire nations. Similarly, the legal code of the feudal regime borrowed heavily from Roman precedent in order to maintain serfs in a state of subjection. In the modern era a consequence of the "Roman" concept of owning other individuals is revealed in the widespread practice of the ruling families of Europe, who exchange territory and entire peoples among themselves by means of international treaties (perhaps a reference to the Concert of Europe after the fall of Napoleon). Comte couldn't think of a better modern example of the disastrous consequences of basing modern law on the ancient Roman precedent of treating some individuals as mere "things," than this diplomatic convention.

Comte believed that the market system required that all the vestiges of legal servitude be finally removed by a combination of political and legal revolution or reform, which would lead to the rewriting of the legal codes through which servitude was defined and protected. The French Revolution partly achieved the former with the abolition of feudalism at home and slavery in the colonies, but the liberal impulse of the revolution had suffered partial reversals under Napoleon and the Restoration. Comte and Dunoyer were confident the break with history had been made and that it was only a matter of time before the economic absurdities and injustices of servitude were completely eliminated. The belief that slave systems based on compulsory coerced labour would inevitably collapse, as a result of both economic and "moral" pressures, is crucial to understanding the liberal political economists and the abolitionist movement. America and to some extent Great Britain had gone further than France in this process of individual liberation, although the process was far from complete. Slavery continued to be a problem in the Southern States and political privileges which protected the powerful aristocracy in Britain continued to exist. Nevertheless, one area in which France was well behind Britain and America was in the field of law. Because of the strength of Roman law on the Continent with its pro-slavery bias, France could not create a legal system which fully protected individual rights and property.

Now that the physical domination of the patrician slave owners and the feudal lords had ended, Comte considered it was also time to end the intellectual domination of their legal codes which persisted in the French law schools. Rather than beginning their studies with an analysis of the ancient texts and codifications, Comte thought that modern law students should instead study human nature and the social conditions present in modern market societies, a fundamental assumption of which was the concept of self-ownership and the right to own the fruits of one's labour. A modernised course in legal studies would also include the study of history and what we would call sociology, in order to understand the development of modern market society and its institutions. Economics would also form an important part of legal study since the role of property is vital to both economic and legal theory. Without a suitable legal system which protected property national prosperity would not be possible. The study of a combination of law and economics would enable jurists, bureaucrats and politicians to understand the "natural laws" which made national prosperity possible, something which was impossible to the slave owners of the ancient world.[588]

What Comte was in fact proposing was that all law students should undergo the same transformation he and Dunoyer had experienced in the hiatus between the suspension of Le Censeur and the founding of Le Censeur europ�en, when they discovered the political economy of Jean-Baptiste Say and the sociological history of Benjamin Constant and Fran�ois Montlosier. The problem of slavery shows clearly the inadequacy of a purely political and constitutional approach to liberalism. Without the insights provided by political economy and a theory of class, the true strengths and weaknesses of slavery could not be understood. Economic analysis showed how dependent the slave system was on tariff protection and subsidies from the metropole for its survival. Economics and class analysis showed how a small group of slave owners could manipulate the metropolitan legislatures and exploit the slave class on the plantations and the consumers in the metropolitan market. The new social dimension to Comte's liberalism showed how the power of the slave owners might be broken. Free trade would remove one pillar of support for the slave system, while a revolution in legal thinking would destroy another.

E. THE LEGITIMACY OF THE ORIGINAL APPROPRIATION OF PROPERTY AND THE PROBLEM OF THE LAND CLAIMS OF THE ORIGINAL INHABITANTS

Since property is so central to Comte's liberal worldview it is important for him to establish how it arose historically and, perhaps more importantly, to explain how in Restoration France modern property relations could be justified from liberal principles. Comte divided the subject of property into three main groups: "appropriation" in general, "occupation" and "possession." The reason for this division is to lay the foundation for his explanation and defence of property which would at the same time be the grounds for a critique of the existing distribution of property. In particular his criticism of property would be directed against property which had been acquired by force or fraud, i.e. by government intervention (such as subsidies, monopoly, tariffs) and by coercive settlement of land in the colonies The division of property into "appropriation," "occupation" and "possession" distinguished between different levels of abstraction. Appropriation is used in a very general sense to argue that in a social context it is "natural" (i.e. essential for the survival of human beings) for the individual to exclusively use material objects in order to grow and reproduce. Property is also natural in the sense that the individual by various procedures transforms material objects into a part of him or herself, thus the individual cannot be separated from his or her property without being in a sense "destroyed." Occupation is used to explain how some property is originally acquired in the transition from the nomadic stage to the agricultural stage of production. Comte responds to the Roman legal tradition to show how "first use" and the application of labour (or industry) justifies the acquisition of private property in land. Unlike some of his contemporaries Comte believes that indigenous people, even though they had not reached the agricultural or industrial stage of production, nevertheless had legitimate property rights which could not be overridden by the arrival of European settlers in, say Algeria or Australia. The property rights of nomadic people were not individual but "national" or communal and included established hunting grounds and recognised tribal boundaries. Having defined occupation in this way Comte is able to challenge the legitimacy of most European settlement in the Third World. The forcible seizure of land from indigenous people was for him a violation of the foundation of liberal property rights. Possession is the third kind of property Comte distinguishes but does not discuss in any detail. For him it is a less useful category because it can include justly and unjustly acquired property. Its interest comes from the actual legal conditions regulating the protection and transmission of property as set down in such legal documents as the Civil Code. Comte subjects the Civil Code to considerable criticism, especially its debt to Roman legal ideas which he thought to be quite inappropriate to industrial market economies.

The justification for appropriation of physical resources lay in the biological necessity for survival. Like other living creatures man is forced by the laws of nature to use the physical resources which surround him in order to survive and prosper. But whereas plants and animals have rather limited needs which can be satisfied directly from nature, mankind has such a diversity of needs that a more complex and indirect method of satisfying them is required. It is at this point in the argument that Comte introduces the idea of appropriation as the means by which mankind is able to satisfy this greater diversity and complexity of needs. Comte defines appropriation as "(t)he action of an organised being who joins (unit) to his own body the things by which he grows, strengthens and reproduces himself"[589] and as "the action by which a person seizes, with the intention to enjoy and dispose according to his wish, a thing susceptible of producing directly or indirectly certain enjoyments."[590] Comte's definition of appropriation implies firstly, that the idea that the process of appropriation involves the transformation of physical objects into a part of oneself for the satisfaction of needs. For Comte the process of appropriation by joining or amalgamation is so important that he thinks that if the individual (or group of individuals such as the "nation") is deprived of this property or separated from this property by, say, the state, the individual is himself destroyed.

Thus property is an integral part of being human and to deny property is to deny life. With some of the more basic human needs such as food, water, air, shelter, the process of appropriation must be a constant one if preservation and reproduction is to be possible.

Secondly, another important assumption which Comte makes is that property is necessary for "organised" humans. "Unorganised" or in other words humans who are not part of society have no need for property. It is only when humans enter into society that they have a need to have the exclusive use of physical resources in order to survive. When physical objects can have multiple and contradictory uses or if they are limited in quantity (i.e. scarce because they are poorly provided by nature or because they are the result of human labour) some mechanism must be found to control their use so as to maximise their productivity. Since Comte has rejected communal ownership and slavery as economically retrogressive states private property is all that is left by a process of elimination.

Thirdly, the type of ownership is determined by the relative scarcity of the physical objects and their "susceptibility" of satisfying needs. According to Comte scarcity is a function of human labour or industry and he divides property into four kinds according to its relative scarcity: common property, national property, local or provincial property and familial or individual property. Each of these kinds of property are discussed at greater length in separate chapters in the Trait� de la propri�t�. At one extreme there are naturally abundant resources such as sunshine, air, the sea which cannot be increased or decreased in quantity by human industry. Each individual can appropriate as much as they need without harming the enjoyment of it by others. Thus they are "the common property of the human race"[592] and the sole obligation of the individual with respect to common property is not to disturb the enjoyment of this property by others. National property comprises things which are somewhat more scarce than common property and which satisfy the needs of large aggregations of humans, such as rivers, highways, ports. Within the nation this kind of property is a form of communal property but they are not the common property of the whole human race. Between nations this kind of property is a form of private property. Within the nation there are additional forms of association on a smaller scale which also satisfy communal needs. This form of property is known as regional or provincial property and serves the needs of the province, town, canton or commune. The final division of property satisfies the needs of very small associations and is known as familial or individual property. This form of property includes ownership of food, clothing and shelter. Unlike the various forms of communal property held at a national or provincial level the use of which requires only a few general laws to control, individual property is scarce and very much the product of human industry. Thus it requires a legal system to protect each individual's exclusive use of the things they have appropriated to satisfy their needs.

Although Comte devotes some chapters to a study of the three forms of communal property - common property such as sunshine and the sea, national and provincial property such as roads and other forms of communication - he devotes most of his attention to a study of private or individual property (those things which are the result of human industry), the fourth form of property according to his classification. The distinguishing characteristics of individual property according to Comte are:

Perhaps the more important characteristics are the third and fifth ones because of the use Comte would put them to in responding to the socialist critique of property. In the third characteristic of private or individual property Comte reaffirms the Lockean principle that property is legitimate because of the labour that has been "mixed" with it in creating or transforming it. According to Comte although the mode of production might change from settled agriculture to manufacturing industry the principle that labour establishes a property right remains unchanged. The fifth characteristic becomes very important when Comte comes to discuss the emergence of individual property when individuals break away from the nomadic state (in which property is communal) in order to begin settled agriculture (in which property is private). It is also important in Comte's demonstration that wage labour may emerge non-coercively in the new stage of farming the land privately and individually. He also believes it applies to the transition from agriculture to industry. Wage labour on the land and wage labour in the factory must at least in theory be capable of arising "naturally," i.e. without the taint of coercion or the violation of other forms of property.[593] Of course, it is over this last characteristic of private property that Comte was to receive so much criticism from Proudhon and others. The latter condition is extremely important to Comte's liberal theory of property because the way in which he defines "exploitation" or the taking away of someone else's property determines the limits of private property. Proudhon would surprisingly agree with much of what Comte says about private property (those things created by human labour) but would define the latter condition differently. Proudhon, Marx and other socialists would oppose the profits of the capitalist derived from employing factory labour precisely because they believe it is acquired only at the expense of the factory workers. Comte and Dunoyer, being liberals, had a very different concept of exploitation which prohibited force and fraud but allowed private property on a vast scale. What became important in their social theory was the original and continuing legitimacy of private property which hinged on this latter condition mentioned above.

The key to the legitimacy of private property was how it was originally obtained (i.e. occupation) and how it is handed on from individual to individual (i.e. transmission). For a given piece of property both conditions must be met satisfactorily before it could be claimed to be legitimately owned. Comte devotes much attention to the problem of the nature of the original acquisition of property whilst his relative lack of discussion of the transmission of property is taken up somewhat later by Dunoyer in De la libert� du travail where he discusses the problem of inheritance.[594] The question of the legitimacy of inheritance became a serious issue in post-revolutionary France because of the claims of some landed aristocrats for restitution for their ancestral lands taken during the Revolution. In the short section dealing with inheritance of property Comte faces the vexing problem of the transmission of unjust land holdings over the generations and the ticklish problem of restitution. Comte concludes that although most land holdings could be said originally to have been acquired unjustly it is against the principle of utility and stability to have a massive redistribution of property. There is a certain weakness in Comte's argument given the radical implications of his theory of property rights. It is not clear why Comte pulls back from supporting redistribution except for the traditional explanation of "conservative" fears of unleashing another uncontrollable revolution. This perhaps explains why Comte devotes so much time to the problem of "occupation." The need to establish the criterion for legitimate property was a pressing one for liberals given the growing criticism by the socialists and the constant fear of aristocratic reaction. Comte bases his defence of private property on the power of industry to create non violently new forms of property. This aspect of property is missing from the Roman juristic tradition which stresses the occupation of previously unowned resources rather than the creation of new resources through labour and industry. For Comte the most important foundation of legitimate property is that of labour. In fact, almost all forms of property in the modern world are a result of labour rather than any other means of occupation.[595]

In his discussion of national property Comte touches upon a related problem of the legitimate disposal or use of property. Comte is careful to distinguish between the legitimacy determined by the conditions he discusses in Trait� de la propri�t� based upon natural law, industry and exchange and the dubious legitimacy which was the result of government legislation. Here he defines the "legitimate" disposal or use of property in the following way:

Private property is thus a combination of physical elements provided by nature and qualities created by human industry which make things useful in the satisfaction of needs. Comte argues that three propositions create the foundation of his theory of property. The first is that man is free by the laws of his nature; his faculties belong to himself; and that the values he creates with those faculties belong to him. Secondly, that the importance of property is not measured by the amount of material or matter but by the usefulness of the qualities in it which can satisfy needs. Thirdly, that the things designated as "common" by the jurists belong equally to the entire world and that each individual can appropriate as much as their needs demand. In other words, Comte believes that each individual should be their own master and that property is a necessary consequence of human nature. More importantly, legitimate property comes from two sources: human industry and a process of "free" or uncoerced transmission.

Comte took issue with the considerable body of legal theory stretching from the Digest of Roman Law to modern theorists such as Grotius, Pufendorf, Blackstone and Kent for basing their justification of property on occupation alone and for ignoring the contribution of labour and exchange.[598] Occupation or first use is important in the earliest stages of civilisation when there is a vast amount of unowned or communal land which could be appropriated. Occupation is also an important factor at the present time when colonies are being established by Europeans in America, Asia or Africa. Both of these issues are discussed by Comte in some detail when he deals with the transition from the nomadic to the agricultural mode of production and the problem of tribal ownership of national territory. But once again the traditional legal theory was inadequate, he believed, because first use or occupation in more advanced industrial societies had become a rather insignificant means of acquiring just title to property, applicable in the colonies, in the privatisation of national property, and occasionally in industry when new goods were invented. A far more common method of acquiring property was by labour and exchange, methods which Comte accused the jurists of neglecting by adhering to traditional Roman methods of dealing with the problem.

Comte believed that it was not obvious why the first user as such had a legitimate claim to "unowned" things by the mere fact of first use (an argument which Proudhon took up late in his M�moires). It was a principle just as arbitrary as the claim of Rousseau in Discourse on Inequality that the fruits of the earth belong equally to all but that the land itself belongs to no one. Rousseau could not conceive of a means of initially acquiring property in land (and thus creating inequality) without usurpation. If arguments about first use were to have any substance they must be based upon principles derived from human nature rather than assertions based upon Roman precedent. A single nation might have the political power to enforce a system based upon first use but since there was no world government to enforce a world-wide acceptance the grounds for property must be based upon sounder grounds than this. In Comte's view property was a natural right founded upon human nature which existed prior to any regular civil government being established.

The basis for the argument that first use was a legitimate means of establishing property rights to "things without a master" lay in the traditional assumption of a convention or social compact by which each individual renounced their original equal right of all to property in a state of nature into packets of privately owned land (established by mutual recognition of the first use principle) from which one had the right to exclude one's fellows. Comte rejects the idea of a compact as logically absurd and historically inaccurate. It is Pufendorf's formulation of the idea of the original universal equal right to property and the idea of a compact which Comte cites and ridicules as "a figment of his imagination" and "a false supposition" respectively.[599] Comte believes the reason the jurists turned to the idea of a compact was that it explained easily what could not be explained without certain economic ideas about labour and exchange. He concedes that there are indeed powerful reasons behind the assumption that property rights are practical and legitimate. What Comte rejects is the idea that they are based on a fictitious compact. The arguments Comte uses to oppose any idea of an original compact or convention which established the right to property are straight forward enough. Firstly Comte argues it was practically impossible to have reached agreement between groups who were geographically dispersed and who often existed in ignorance of each other's existence. In fact, it is absurd Comte argues to believe that such geographically dispersed people could harm each other by claiming objects immediately around them as property. How could one be deprived of something one is in complete ignorance of? Secondly, Comte argues that any compact to be legitimate had to be renewed each time someone died or came of age. Without universal voluntary agreement any compact would become a usurpation of the original participants to the compact over later generations.

As we have seen Comte's conception of property involves the twin ideas of the satisfaction of needs and the use of human industry. In a very general sense property are those "things which assure men the means of existence."[600] Although nature provides the "elements" or materials it is human industry, by transforming nature in some way, which creates the "qualities" which make things "valuable in our eyes." (Thus there is a subjective element which must be considered in understanding the nature of property.) Humans do not create the original natural elements but they do and can "occupy" them. By this Comte means being the first to "seize" them with the intention of appropriating them. The best example of such a process of transformation by the occupation of original elements is the settlement of North America where industry has transformed "vast forests traversed by a few wild tribes" without value into "a multitude of valuable properties."[601] The principle of first occupation of natural elements is only the first step. The next and perhaps more important step is the process of transformation through industry which creates a more substantial and important type of property.

To explain the economic development or progress of the United States of America Comte cites the existence of material elements or resources, the occupation of those elements by the first users, the industry of the first users who transformed the elements into valuable property and the guarantee that their original occupation is to be protected so that they could enjoy the fruits of their industry. Where exclusive occupation and private property do not exist there is no "progress" according to Comte. A nomadic existence results in a stationary economy barely above bare subsistence and a situation of misery and ignorance.[603] Similarly, he discusses the consequences of communal labour and ownership which he believes results inevitably in a form of slavery.[604] If nomadism and common ownership result in a stationary or oppressive social state then the only society which permits economic growth and the "perfection" of the individual is one based upon the appropriation of material resources which can be acted upon by human industry. In this case Comte resorts to an argument from elimination to defend the idea of private property. If one assumes the importance of economic progress and individual perfectibility then Comte believes all other forms of human association are inadequate. Nomadism, communal ownership and slavery all retard the economic development of the individual who needs the protection offered by private property to expand production and innovate. Without the right to exclusively enjoy the fruits of one's labour Comte believes that the benefits would be so divided as to make it unprofitable for anyone to improve their situation.[605]

Comte's fourfold division of property into common, national, provincial (or regional) and individual types of property was a result of a conscious method of classifying property according to needs and scarcity. He could have used the traditional Roman distinction based upon the differing physical characteristics of the things which are owned (real and personal). Instead he chose a classification based upon the different relationships which he thought existed between property and the individuals whose needs and very existence was assured by the existence of property. In this case Comte is concerned with the individual's relationship with property which is more or less the product of individual industry (or scarce), or more or less a public good (or not scarce). It is not clear how closely Comte intends to apply his theoretical classification of property to the actual historical development of property. He argues in later chapters of Trait� de la propri�t� that historically property did develop along a continuum which begins with communal ownership and traverses towards ultimate private property via the different stages of tribal (or national and perhaps provincial) ownership. There are some passages in which he implies that all property began as communal property and was thus historically prior to the emergence of individual property. Certainly with respect to private ownership of land Comte believes that its existence was impossible until the agricultural stage of production appeared. Whether or not personal artefacts such as weapons, jewellery and clothing were privately or communally owned originally is not made clear. The classification which Comte adopts is suspiciously theoretical to be considered an adequate historical analysis of the emergence of individual property. Elsewhere in his work Comte shifts uneasily between history and theory and it is not always obvious when he is doing so. Part of the problem is that some of the important transitions from one means of production to another did not occur in the historical era with written records to provide evidence for historically-minded sociologists such as Comte and Dunoyer. Like their eighteenth-century counterparts (e.g. Turgot) they lacked detailed studies of primitive societies and so their knowledge of comparative anthropology was based upon classical Greek and Roman authors as well as eighteenth and nineteenth century travellers accounts. The assumption behind using these sources was that all societies developed in much the same way and that Greek and Roman historians and travellers had accurately described their own and their neighbour's evolution to settled agriculture. What the ancient authors were not able to supply was provided by more recent travellers' accounts of voyages to Africa, America and Australia or, if even this often unreliable and misleading source was lacking, pure theory had to be resorted to. This is in fact exactly the method adopted by Comte in his discussion of the origins of national property. It was in this manner that Comte argued that the human race might theoretically divide itself "naturally" into various components (fractions) in order to protect itself and satisfy its needs, the most pressing need being that of security from violence. Unfortunately, he recognised that historically, instead of providing an adequate defence against violence, the nation was more the product of violence than a source of protection from it. The diplomatic treaties which have moulded the present boundaries of nations were an obvious example of how military force has come to replace the non violent satisfaction of individual needs such as protection.

The concept of "national property" is quite important to Comte.[606] He considers it to be the most important form of occupation which forms the basis for all private property. Long before individuals begin claiming tracts of land as private property for themselves, the community of which they form a part consider the land on which they hunt and fish to be "their" land vis-�-vis other tribal groups. They have the right to exclude others and to punish those who transgress the community's property rights. This concept of "national property" is important because it provides Comte with the means to attack the practice of colonisation which the European nations had experienced since the sixteenth century. In particular he believed that nomadic peoples in North America and Australia had a legitimate right to their own national property which they had traditionally inhabited. Although they themselves had not reached the stage of permitting private property in land they nevertheless had the right as a group to enjoy their national land without interference from Europeans. The settlers had the right to purchase land or rights to use the national land of the original inhabitants but they did not have any right to deprive them forcibly or by deception of their traditional lands. In other words, Comte rejected the idea of terra nullius. He did recognise that sometimes settlement took place on land that belonged to no nation but in most cases colonisation had taken place in territory which had already been appropriated. In the former case, international law controlled the way in which previously unowned property could be appropriated. In the latter case, once a nation had established regular use of its territory its own laws regulated the way in which property was acquired.[607]

This did not mean that legislation created the right to occupy and appropriate land. Rather, in keeping with Comte's belief in the priority of natural law, legislation such as the Roman law of occupation in Justinian's compilation or indeed the French Civil Code, only "consecrated" existing practice rather than created it from scratch. The Romans applied the law of occupation of unowned things to the capture of wild animals, the occupation of some kinds of land, the discovery of pearls and precious stones found on the sea shore and uninhabited islands.[608] The French Civil Code largely followed Roman practice and Comte complained that the code seemed to have excluded the possibility of any new occupation by individuals within the national territory since it claimed all unowned or abandoned property as part of the public domain. Comte thought it questionable that a state official had the right to claim a precious stone which an individual had found on the sea shore. Likewise Anglo-American writers had recognised the same right of occupancy although they had not applied it in the same way as the Roman jurists.[609]

F. THE EMERGENCE OF PRIVATE PROPERTY OUT OF COMMUNAL "NATIONAL" PROPERTY

In order to respond to the objections of those who rejected the right of absolute individual property rights to land, Comte develops a series of arguments to show that the transformation of "national" or communal property in land into private individual property does not harm the interests or rights of other people.[610] It is important for him to establish the original legitimacy of private property in land in order to argue that industry in the broad sense not only is highly productive but also moral. It is also vital for his liberalism that he establish at least the theoretical possibility that industrialism could have had what one might call an "immaculate conception," i.e. free from the original sin of what Marx was to later term the violence of "primitive accumulation." Naturally Comte is aware that historically plunder and violence had accompanied the emergence of private property in land, dominated as it was by noble possession in the feudal period, and the system of industrialism which emerged from it in the eighteenth and nineteenth centuries. The point of his discussion of the emergence of private property in land is to argue that private possession and the industrial system did not depend necessarily on "theft" (to use Proudhon's expression) or unjust appropriation in order to develop. At least theoretically if not historically, Comte believes, there were ways in which property and industrialism could have emerged which did not harm the interests of others and which in fact contributed to their well-being in various ways.

The theoretical possibility of legitimate and moral private property in land raises the important question of how to explain the obviously illegitimate and immoral distribution of land which did in fact emerge historically. This was the task which liberal historians set themselves in the Restoration period, to imagine various mechanisms by which legitimate property could be perverted into its opposite.[611] Historians like Augustin Thierry developed elaborate "conquest" theories of history to explain how industrious original inhabitants were dispossessed by invading foreign nobles of their legitimately held property in land. Comte, Dunoyer, Fr�d�ric Bastiat and Gustave de Molinari later in the nineteenth century argued that the state and the legal system itself was another mechanism through which legitimate property could be altered. Bastiat in particular coined the phrase "legal plunder" to describe how those who controlled the state could use legislation to achieve the same ends as the conquerors in Thierry's histories of the Middle Ages and the Norman Conquest.[612]

The final result of this approach to the theory of legitimate property rights in land is that there is a tension between the theoretical purity of liberal speculation and the historical record. There are three possible explanations which one could give: firstly, that all private property in land is unjust; secondly, that all present titles are legitimate through the passage of time or sanction of the state; thirdly, that present titles to land are in fact "mixed" containing just and unjust claims. The first explanation, which has superficial plausibility, was to argue that private property in land was flawed from the very beginning as Proudhon was to argue later. The original act of privatising communal property was not a universal right that all could exercise. Only the first comers could exercise this right which was denied the generations who came later. Arguments like these even appealed to staunch liberals like Herbert Spencer and Thomas Hodgskin and were the basis of the ideas of Henry George who, aside from the question of land, was quite a radical laissez-faire liberal. The second explanation that all present titles are legitimate either through the passage of time or the sanction of the state is one that Bentham might have agreed with but not one that a true liberal reformer like Comte, Thierry or Spencer would have sanctioned. The evidence that some individuals or the state had used force to acquire property was obvious to anyone who had lived through the French Revolution or who had studied its history. Thierry in particular in his histories of the Third Estate in Europe took great pains to argue that no state could assume its distribution of property had arisen without any taint of violence.

The third explanation is rather more difficult to argue because of the added complexity of asserting that property ownership in the present was "mixed," containing legitimate and illegitimate components. According to this explanation the existing distribution of property in land was a complicated mixture of legitimate and illegitimate titles. The legitimate component of the existing distribution of property was made up of those who had acquired their property legitimately by following the procedures established by Comte. They had acquired property either by legitimate first use or had purchased it from someone else who had done so at some time in the past. The illegitimate component (the exact proportion of legitimate and illegitimate property was disputed) was made up of property that had been "conquered" or "usurped" at some time in the past. The "usurpation" (to use the term popularised by Benjamin Constant in his attack on Napoleon's militarism)[613] could take the form of outright conquest and confiscation as described in Thierry's histories or the more recent and continuing process of what Bastiat called the "legal" usurpation or plunder by those who controlled the political system. The result was that the existing distribution of property had become horribly mixed. Over time, illegitimate owners might add to the value of their holdings by industrious activity or purchase legitimate property from others. Legitimate property owners might purchase land from illegitimate owners to add to their rightful possessions. Those who had been originally dispossessed by conquest or usurpation might disappear and their descendants not know of their lost inheritance. Peasants who presently worked the land and paid rent to landlords might in fact be the descendants of the original legitimate owners. The industrious middle class landowner might unknowingly have acquired illegitimate property by purchase and this was particularly the case with those who had purchased biens nationaux during the French Revolution from the Church or emigr� aristocrats.

Comte's answer was that the problem of land ownership was only apparent. Without examining the historical origins of property titles one could come to the conclusion that all the present landowners were "clever usurpers," that all labourers were their "dupes or victims" and that there should be a redistribution of land so that the victims could have their just property restored to them. That some or many landowners and labourers were in fact clever usurpers or victims did not destroy the theoretical foundation of property in land, in his view.[614] The "apparent injustice" of present land titles could only be explained if one clearly distinguished theoretically between just and unjust modes of acquiring property and used historical investigation to show how unjust methods were used in the past to dispossess just owners of their land. With the assistance of a just theory of property rights in land and a liberal historiography which explained how particular classes have "usurped" property it was possible to separate unjust from just property titles in the present. This explains why liberals in the Restoration period and the July Monarchy spent so much time trying to defend the right to property and to describe how history had resulted in a mixture of just and unjust property titles. The historical interest in the Ancien R�gime, the French Revolution and Napoleon can also be at least partly explained in this way. Comte finds a similar argument about the need to distinguish between legitimate property as defined by liberal theory and illegitimate property which may have emerged historically by the abuse of liberal principles in some remarks made by Count Pierre-Louis Roederer during the French revolution. Roederer was the editor of the Journal d'�conomie publique, de morale et de politique in 1793 at a time when property rights were under attack by the radical Jacobins. He unequivocally reaffirmed the principle that property was a natural right which existed independently of society and that when property was attacked it was important to recall the important distinction between right or law (droit) as a principle and the exercise of right or law in historical practice. The implication of this distinction made by Roederer is similar to that drawn by Comte, namely that at a time when supposed injustices are under attack and revolutionary reforms proposed to remove them it is important to distinguish between the thing and the abuse of the thing.[615]

The existence of "mixed" property ownership raised the very difficult legal problem of separating legitimate from illegitimate forms of property. It may be possible to identify dispossessed legitimate owners or their direct descendants and to return all or some of "their" property to them. If this was too difficult because of lack of information or the disruption to the market and existing legitimate property owners (which was Comte's rather conservative position) then it was necessary to have some legal provision which would sanction some forms of illegitimately acquired property so that the present possessors could be secure in their use and plan for future investment. In other words, to somehow magically transform violent usurpation into legitimate property by prescription. Once again liberals like Comte were faced with a theoretical dilemma. Their liberal theory of property led them to a potentially revolutionary conclusion, namely that some form of property redistribution was necessary in order to return "usurped" property to its rightful owners - a solution which had remarkable similarities to Proudhon's call for redistribution based upon his socialist rejection of much property as "theft." Comte was to ultimately pull back from the revolutionary consequences of his property theory. He concluded that the most peaceable and least disruptive solution to the problem of illegitimate property was to assert that the passage of time somehow bestowed legitimacy on illegitimately acquired property. As in so many other ways, the memory of the French Revolution and the radical Jacobin attempts to legislate redistribution of property led liberals like Comte to prefer a reformed but still imperfect status quo to another revolutionary overthrow and potentially bloody property redistribution.[616]

Comte's purpose in discussing the conversion of communal property into private property was not to justify a revolutionary redistribution of property but to counter the arguments of those who believed private property in land was morally compromised from the very beginning. Comte wanted to show that both in theory and in many (if not most) historical cases private property in land was legitimate. The moral corruption of property came much later when legitimate owners were dispossessed by various means. This meant that in some situations the socialist critique of existing property distribution was correct. What they were in many cases identifying was the result of usurpation and not the correct functioning of liberal property theory. Unfortunately some socialists took this critique too far, according to Comte, because they did not distinguish between the two. Rather, in their anger they wanted to destroy property altogether. It is in this light that Comte's arguments about the possibility of legitimate acquisition of private property in land should be viewed. If he could show how communal property could be converted into private property without causing harm to others he believed he had undermined the socialist critique of private property in land as such without abandoning the correct aspects of the liberal and socialist critique of the injustice of much land title in contemporary Europe.

Comte presents his argument concerning the inoffensive origin of the right to private property in land in Chapter X, "Conversion of National Territory into Private Property" of Trait� de la propri�t�. His aim in this chapter is twofold: firstly to show how parts of the national territory are "detached" and converted into private property; secondly to show how the transition from hunter-gatherer to settled agriculturalist can be achieved without harming others and, in fact, actually benefiting those who remain at the hunter-gatherer stage of production. He begins with the idea that as long as the national territory remains uncultivated it stays undivided. Private individual property only exists in moveable things such as weapons for war or hunting, some food supplies, as well as things which will be abandoned when one has finished using them, such as a simple hut.[617] The reason for the absence of individual property in land at this stage of economic development (the state of savagery) is economic as well as technological. As hunter-gatherers they require an extensive territory to provide themselves with the animal and plant life they require for subsistence. Given their level of technological competence it is impossible for them to fence in such an expanse of territory and thereby control the animals they hunt and therefore to be able to exert some claim to property in the land. What boundaries that do exist between tribes are the result of traditional practice based upon the food producing capacity of the land. A tribe of any given size will require a certain quantity of land to provide them with the animals and plants necessary for their survival. If they happen to live in a very fertile river plain the amount of territory they will have to range over in the course of a year in order to find their food will be less than the territory required by a similarly sized tribe in a semi-arid region. In each case the territory which is traditionally used for food gathering is determined by the productive capacity of the land and the recognition the tribe receives from (and gives to) its neighbours. It is this territory which Comte calls "national" and which he believes exists prior to the need for and the creation of private property in land.[618]

The key to Comte's argument about the benign consequences of original private property in land is his belief in the much greater productivity of agriculture compared to hunting and gathering in the same area of land. The actual proportion used by Comte in his calculations by which settled agriculture is more productive than hunting and gathering is rather fanciful and is obviously not based upon any scientific or historical comparison of the productivity of different land usage. The figure he uses is purely figurative, being a round thousandfold improvement. He asserts that the product of one unit of land used for agriculture produces the same amount of food and other goods as one thousand units of land used for hunting and gathering. Yet, even though the actual figure is a product of Comte's imagination the general thrust of his argument is accurate: that the more intensively one works a piece of land the more productive it becomes. As soon as a part of a tribe of hunter gatherers withdraws from hunting and gathering to devote itself to agriculture a much smaller extent of territory is necessary to provide for their needs. Instead of ranging over a wide expanse of territory to gather and hunt the much greater productivity of agriculture allows them to supply most (perhaps all) of their needs from quite a compact space of intensively cultivated land. The land which they previously used for hunting and gathering is no longer needed and they in effect abandon it for the benefits of settled existence as agriculturalists. The key to Comte's argument is this aspect of the transition. Far from taking anything away from their kin who remain hunter gatherers those who choose the agricultural way of life (or mode of production) make more land available to the others by abandoning a large part of the territory over which they previously foraged. Within the boundary of the national territory the remaining nomads have that much more land to use than they did before some members of their group opted for a settled existence. It is for this reason that Comte believes that private property in land can emerge without necessarily harming the interests of any other person and which in fact leaves others better off than they were before some of their members became property owners. Another reason for Comte arguing that those remaining nomadic are not made worse off by those who choose to become agriculturists is that the greater productivity of settled agriculture creates surpluses which can be traded for the meat, skins and other products of the nomads. The opportunity to trade opens up enormous benefits for both parties so long as each treated the other with respect and tolerance.

As for those individuals who live outside of the national territory they have even less justification for disputing the legitimacy of the conversion of commonly owned land into private property. Although they do not directly gain from the extra common land left for the hunter gatherers to use by those adopting the agricultural mode of production they are not harmed in any way, according to Comte. In fact their situation is left unchanged. The liberal defenders of private property thought it was a curious omission of socialist critiques not to include, say, Russian serfs and American Indians in any redistribution of property in Europe. Why arbitrary national boundaries should make a difference in any calculation of land redistribution from the "haves" to the "have nots" was never explained they argued. Surely, if landless labourers in a remote part of France had a claim on the property of Parisian landowners then others, equally remote and equally landless, also should be considered by reformers. The issue which made these anti-private property reforms worthless was that they ignored the connection between cause and effect. In liberal theory the act of appropriation had to be shown to directly harm someone else for it to become illegitimate. In order to prove that the act of improvement and cultivation of previously commonly owned land was an illegitimate way to make land private property opponents had to show one of two things, either it violated someone else's personal or property rights or it left someone else worse off than they were before. In both instances the interests and rights of other "nations" were so far removed from the issue at hand (the privatisation of part of another "national" territory) that they were not involved directly or indirectly at all. Comte dismissed the claims of other "nationals" to be affected by the privatisation of property on the other side of the world. He concluded that if by economy and hard work a small group within one national territory were able to clear some land, erect fences and buildings they firstly left the situation of other foreign nationals unchanged - "they take nothing by force (ils ne ravissent rien) from men foreign to their nation"[619] and secondly, far from harming the interest of the fellow "nationals," they actually improved their situation by making more land available to them for hunting and gathering. As Comte asks rhetorically:

Comte's argument that the original cultivation and appropriation of land, far from harming the interests of those remaining as hunter gatherers, actually provided them with greater territory over which to range appears to satisfy John Locke's important proviso in the Second Treatise. After establishing the right of individuals to own "the Fruits of the Earth" John Locke argues that working the land also establishes a property right to it. The only condition placed on this process of "laying" one's labour on the land and thereby making it one's own is the proviso that one leave land aside for others to use. The expression John Locke uses is that there be "still enough, and as good left" after any parcel of land has been withdrawn from common ownership by private appropriation. To quote the relevant passage from Locke:

There is no direct evidence to suggest that Comte knew of Locke's proviso although the general tenor of Comte's argument seems to suggest that he was at least indirectly aware of it. It would be an interesting exercise to examine the influence of John Locke's thought on the continent, what translations were available and how his ideas were received, especially in the late eighteenth and early nineteenth centuries when Comte, Dunoyer and other liberals were formulating their ideas on property.

The next stage of Comte's argument concerning the legitimacy of private property in land is the supposed "unearned" value which a property owner gets, although no labour has been expended on the property, when a neighbour improves the value of the land. The examples of this process which Comte uses to illustrate his argument come from the rapidly expanding economy of the United States and the improvements being made to large cities like Paris in the early nineteenth century. Once again the liberal defence of property was exposed to criticism from Proudhon who pointed out that the Lockean argument (that labour creates both value and a legitimate claim to property in the value created) could be used against liberals in situations like this where the increase of value and the use of labour are separated from each other. Comte returns to his earlier discussion of the inoffensiveness of the original claim to private property in land in order to show that the problem of unearned value has been with private property from the very beginning. His solution to the problem is twofold. Firstly, that it is reciprocal because of the interdependence of all participants in the market. Whatever I do to my property influences the value of other people's property and vice versa. Secondly, because of this interdependence of property ownership it is extraordinarily difficult, perhaps impossible, to determine who owns what proportion of the so-called "unearned" value of improved property. What proportion of the increase in my property value is to be attributed to my immediate neighbour who improves his land and what proportion to the other, more distant property owners who do the same thing in the same city or region? The fact that the expending of labour and the increase in value of property are not always directly connected is part of Comte's original argument about private property in land. The first agriculturalists, by withdrawing from the nomadic life and concentrating on the more intensive and productive agricultural mode of production, released much land and valuable resources for the use of their fellows who still pursued the life of a hunter gatherer. Similarly, the use of "industry" at a later stage of economic development increases the property values of others to a much greater extent than the transition from nomadic to agricultural mode of production increased the "unearned" value available to those who retained the nomadic way of life. The point of this line of argument is not so much to refute the claims of the critics that this unearned value is unjust but that it was and is an inevitable part of economic progress and the interdependence of all participants in any mode of production (even socialist) above that of hunting and gathering.[622]

Comte continues with a discussion of property values in Paris to illustrate this process by which economic development (or industry) increases not only the value of one's own land but also that of one's neighbours. It is ironic that Comte uses this as evidence that the transition from public to private ownership of land does not harm others but actually increases their wealth as an unintended consequence of economic activity. Proudhon and other critics of private property see the problem very differently. They consider that this unintended consequence of settled existence is an argument against the legitimacy of private property. They view it from the perspective of the person labouring in his own field and thereby increasing the property values of his neighbours without reward. One explanation of the conflicting interpretations of this unintended consequence of economic activity is the "half-full half-empty" glass phenomenon. Comte's intention is to show that property ownership does not leave others worse off while Proudhon wants to show that some labour is not adequately rewarded for the increase in value it creates. Comte sees the glass half-full and getting fuller as more public property is converted into private property. Proudhon sees the glass half-empty and getting emptier as landlords, capitalists and factory owners refuse to pass on to labourers the full value of their labour.

To demonstrate the complexity and mutually beneficial nature of economic improvement Comte gives the example of two neighbours both of whom build houses on their land. In building a new house on his property my neighbour adds to the value of my land without having done any labour on it. Surely he should be entitled to own whatever value his labour has created, whether it occurs on his land or anybody else's? Why should I, who have done nothing, enjoy the fruits of another's labour? The answer Comte gives is that, apart from the example of the owner of a vacant block in a city surrounded by improved properties which add enormously to the vacant block's value,[623] most landowners also build houses and improve their properties in some way. They too add to the value of others' land in a mutual and reciprocal relationship which is impossible to unravel in order to assign exactly who has contributed more than others to the general increase in property values.[624]

This is not an issue which Comte spent much time discussing in spite of the fact that it was an argument which many critics of liberal property theory found appealing. Comte's response is inadequate because he did not foresee the use that future critics of liberal property theory would put the issue of "unearned" value. For him it was a happy though unintended consequence of "industry" being applied to land. He refused to entertain the idea which some critics proposed later that some form of taxation could be used to take this "unearned" value away from property owners, most likely in the form of a capital gains tax or property tax or rent (as Henry George and "the single taxers" advocated). As a liberal the thought of a new and intrusive government bureaucracy to assess "unearned" value and to supervise its taxation was a massive intervention in the economy which was abhorrent to him for many reasons. Furthermore, Comte had used the idea of "unearned" value as a justification for private property so it is not surprising that he did not see it as a serious objection to it. The unintended consequence of the privatisation of publicly owned national territory was that it did not leave others worse off. In fact, others were better off when a small group appropriated part of the national territory. By their intensive use of the land and the application of "industry" to increase productivity the property owners created considerable "unearned" value to the benefit of others. Whereas Proudhon uses the idea of unearned value to condemn the unfairness of private property Comte uses it to establish its legitimacy and to satisfy John Locke's proviso of "still enough, and as good left." Surely an irony that the productiveness which Comte so much admired in private property and industry could be used later to justify its abolition or regulation by socialists like Proudhon.

G. THE "INOFFENSIVE" EMERGENCE OF WAGE LABOUR

Some explanation is required in order to understand what Comte meant when he introduced the examples of workers clearing the land and building a house yet with the legitimate ownership remaining in the hands of the capitalist or landowner. There is a certain similarity in intention here to the discussion about the inoffensiveness of original private property in land. Just as Comte wanted to show that privatisation of national property did not harm others but in fact increased the value of the remaining commonly owned land in an "unearned" fashion, his intention with the origin of wage labour is to show that it too could emerge without harming the rights or interests of others. The parallelism between the two arguments about the emergence of private property in land and the legitimacy of wage labour is important for two reasons. The first reason is that both fit into the evolutionary framework within which Comte and Dunoyer developed their economic ideas about the emergence of industrial society. All the important institutions of the modern industrial market economy had to be shown to emerge by necessity and without violating any one's rights. The second reason for the important parallel in argumentation is that, although the theoretical possibility of inoffensive emergence of these institutions was demonstrated, the historical record showed that the institutions were "mixed," showing a moral (cooperative and non-violent) and an immoral (violent) aspect to their development.

In the case of land liberal historians like Augustin Thierry developed theories of conquest and usurpation to explain the unjust distribution of land which had developed over the centuries. In the equally important area of wage labour the parallel immoral aspect of evolution was the emergence of slavery which Comte was to describe in such detail in Trait� de L�gislation, the first volume of his magnum opus. As with the distribution of land ownership the mixed nature of labour over the centuries had to be recognised and, where possible, the legitimate form of labour distinguished from the illegitimate. Liberals faced a similar problem with labour vis-�-vis their critics as they did with land ownership. In many respects they shared the socialist's condemnation of slavery and coerced labour in all its forms but they believed that a legitimate and non-coercive form of wage labour existed which needed to be defended. Hence Comte's considerable pains to show how legitimate wage labour might originally emerge and how it was historically "perverted" in some respects with the development of slavery in the ancient world, serfdom in the feudal period and guild restrictions in the later middle ages.

In the evolutionary scheme which Comte uses to describe the stages of economic development the first stage is that of "barbarism" or nomadic hunting and gathering followed by settled agriculture on private plots of land. Between these two early stages of economic development is a transitional stage in which there exists some communal aspects of the nomadic life along with the beginnings of settled agricultural life. Before discussing Comte's explanation for the uncoercive emergence of wage labour in the settled agricultural stage of production a brief summary of Comte's conception of the nomadic and transitional stages needs to be given.

In the "barbaric" state of production the only social distinctions within the tribe are those based upon age, sex, physical strength and beauty. Inequalities of wealth are impossible since no one is required by want to work for another. No individual is sufficiently wealthy to purchase the labour of another; conversely no one is poor enough to have to work for someone else to make a living. All members of the tribe are obliged to cooperate in the search for food and what is available to the tribe is equally shared amongst all the members. What is lacking for the major transition to settled agriculture and wage labour is the existence of capital, either of stored food or other goods.[625] An individual acting alone within the barbaric stage would find it impossible to find the time or resources (capital in the form of stored food) to clear the land and prepare the soil for sowing crops as well as providing for day-to-day needs. Furthermore there is the problem of protecting the crops from animals and even members of other tribes. Because of these factors Comte concludes that the transition to agriculture (and thus private property) has to come about cooperatively rather than individually. In other words there is not a clean break between the two modes of production. Before settled agriculture based on private property can emerge there must be a transitional stage of agriculture based upon a mixture of communal and individual labour and communal and private property. The transitional stage shows some of the communal aspects of production of the nomadic stage before sufficient wealth was accumulated to permit full independent and private use of the land. His analysis is based upon ancient Roman accounts of the Germanic tribes, travellers accounts of North American Indians and curiously the early days of the English colony in Virginia.[626] In these transitional societies Comte believes the cooperative nature of production used in the nomadic mode of production is continued for some period of time. The land is cultivated in common, the products of the land are stored in public storehouses and each family receives what it needs from it.

What makes agriculture so different from hunting and gathering and so difficult to get started is that a much greater time lag is introduced between production and ultimate consumption. Whereas the labour required for hunting and gathering might be rewarded in a few hours or at worst a few days, the reward from agricultural work will not come for some months. During the months between clearing the land and the first harvest the would-be agriculturalists need provisions which they can draw upon until the harvest is ready. The problem of food supplies is compounded if workers other than immediate family members are included in the calculations. Thus agriculture for Comte is like any other "industrial" enterprise. It requires a "boss"[627] who has somehow saved the capital to pay workers for their labour until the product can be sold or the crop harvested. In the case of the transitional stage this "boss" or "chef de l'enterprise" is a cooperative of one or more families of a tribe. It is the cooperative who introduce a more specialised division of labour and make the necessary "economies" to accumulate the capital necessary to become farmers. Once family cooperatives become established it is a short step, Comte thought, to the full privatisation of land and farming as family members gradually spilt off to farm individual plots of land.

The most difficult stage in the transition seems to be the leap of faith required to form family cooperatives, in particular the perception that short term saving and sacrifice will result in a greater long term reward. The impulse which makes individuals of a hunter-gatherer tribe leave the nomadic mode of production and undertake a much harder life (at least temporarily) is not explained by Comte and therefore seriously weakens his argument. The most likely explanation (not given by Comte) would be that in some extremely fertile parts of the world naturally occurring self-seeding crops might attract nomads at regular times of the year. The step from regular harvesting of wild crops to that of active full-time farming would be a relatively short one. Nomads could then gradually give up their foraging and take up farming only when nature itself had provided the necessary capital from previous years' good harvests.

Comte's less than satisfactory account assumes that an act of will is all that is required to leave the stage of nomadic production and begin the slow climb up the evolutionary ladder to the industrial mode of production. He merely states "that if a tribe wished to cultivate a part of the national territory that it occupied"[628] it would have to have sufficient provisions to tide it over until the first harvest. Although Comte ignores the reasons why individuals would wish to do this in the first place his account of the method by which this might be done is plausible within his theoretical framework. The first step is to increase the amount of work done in order to do two things at once, namely to continue hunting and gathering to provide for day-to-day needs and at the same time to clear the land and prepare the soil for crops. The latter function Comte believes has historically been done by a sexual division of labour. The men initially do the back-breaking work of clearing the land and then leave the tending of the crops to the women whilst they return to more traditional occupations of hunting game and attacking their enemies.[629] In this manner the fundamental break with the nomadic way of life is achieved and path is cleared for the accumulation of considerable surpluses. This is made possible by two developments which were not available to hunter-gatherers: firstly, the greater productivity made possible by the division of labour; secondly, by the greater productivity of agriculture compared to hunting and gathering. Once the principle of the division of labour has been established, even if it is the rather crude version based upon a sexual division of tasks, and then applied to agriculture the enormous gains in productivity (Comte fancifully guesses a thousandfold increase) enable at first families and then individuals to accumulate sufficient surpluses for wage labour to emerge. Comte assumes that in this new stage of economic production inequalities of wealth will emerge inevitably but in a non-coercive manner. This is due to the fact that once surpluses become possible under agriculture some individuals will be more "industrious" than others, that they will forgo present consumption in order to have even greater surpluses for the future. These frugal or harder working individuals destroy the original equality which existed in the early farming community. It is now possible that some individuals will choose to work for others who now have sufficient surpluses to pay their wages for a period of time. The less thrifty, the less efficient, the less prudent, the less intelligent and the less skilled will prefer to work for others rather than endure the hardships of clearing the land themselves and working hard to accumulate their own surpluses from scratch.

The key factor in this momentous change in mode of production is, as Marx realised, the existence of surpluses out of which wages can be paid to labourers. Comte believed his account of the transition from the nomadic life of hunter-gatherers to the highly productive agricultural way of life provided a non-coercive means by which private property and economic inequality could arise. What still needed to be demonstrated was the legitimacy of the relationship between the wage labourer and the newly arisen "capitalist" with a surplus saved. Comte had to provide an answer to the question raised by socialists concerning the right of the labourer to a part of the finished product of his labour even after the payment of his wages. The first stage of his argument is that private property in land can be acquired legitimately. This can be done as we have seen by the original process of converting part of the national territory into private property by the act of cultivation. Another method which was a great interest to Comte was the sale of public land to private individuals as happened during the French Revolution. As long as this land was previously unowned (the issue of land belonging to emigr� nobles is not discussed) and uncultivated (such as swamp and forest) the nation gained by its sale. The nation gained much needed revenue, non-productive land was put to productive use and the purchasers had the opportunity to profit from their investment. Just as the original acquisition of private property satisfied Locke's proviso by leaving those remaining as hunter-gatherers no worse off so did the sale of public land to private individuals not harm the nation. There was no usurpation in Comte's view when public land was sold at the market rate to private individuals. The second stage was the just emergence of the payment of wages. Comte believed that this occurred as a direct result of the greater productivity which the combination of private property and agriculture made possible. Although the payment of wages probably began in a communal setting as the productivity of the land improved individual land owners, through greater intelligence or hard work, eventually acquired enough wealth to employ others on their land. Thus Comte concluded that the socialist critique of both private property in land and the payment of wage labour were both legitimate and necessary to the economic advancement of mankind.

An interesting aspect of Comte's theory of property which added some complexity to his analysis is that of the combination of legitimate and illegitimate ownership and labour use. With respect to the ownership of land, legitimate ownership through first use and non-violent exchange was unfortunately mixed with land that had been acquired through extortion and conquest. The mistake the socialists had made was to confuse the two and the task of liberal historians such as Augustin Thierry was to unravel them as much as possible, at least on the pages of their history books if not in the state legislatures. A similar situation existed with labour practices. Comte was convinced his theoretical and historical analysis had shown how wage labour might emerge in a legitimate fashion as part of the transition between nomadism and settled agriculture. Unfortunately, as in the case of land ownership, the legitimate use of wages had become mixed up with coercive and illegitimate labour practices such as forced labour and slavery. Once again, the socialists had assumed that coercive labour practices and especially slavery were an essential feature in the emergence of capitalism and that all labour practices were basically "slave-like." Once again, it was the task of liberal theorists to untangle the two and show how slave and other forms of forced labour had harmed economic development. Furthermore, the liberals wanted to show how slave labour ultimately would be done away with and a society based entirely on legitimate and free labour would emerge. This interest is yet another reason why both Comte and Dunoyer spent so much time and effort in analysing the phenomenon of slavery in their works.

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