When Paul Elmer More, the American humanist, defended the property right some forty years ago as something fully as impor­tant as the right to life, he offend­ed a whole generation of young people who thought of him as a hard-hearted old reactionary. The history of the Western world since the Bolshevik Revolution, however, has served to indicate the humanity of Dr. More’s posi­tion. When people are deprived of the property right, they live on sufferance—which means that they may not live at all.

Growing up in Hitler’s Ger­many, at a time when the Nazi State treated all property as "so­cial"—i.e., alienable for the pur­poses of the Nazi party—Gott­fried Dietze, author of In Defense of Property (Regnery, $6.50) discovered the truth of Dr. More’s reasoning long before he had reached the age of reason him­self. By robbing people of their natural rights, including the right to property, Hitler made effective opposition to his warlike purposes impossible, and Germany drove straight toward disaster. "Smallwonder," says Dr. Dietze, "that after the conflagration I delved into a study of free government." He became particularly impressed with America, where, as it seemed to him, protection of the Lockean triad of rights—to life, liberty, and property—was still visible as the basic end of government.

This was before Dr. Dietze had come to America in 1949. After ten years in this country, how­ever, Dr. Dietze began to wonder whether his enthusiasm for his "idyll" was justified. The same forces that had undermined the theory of "natural rights" in Ger­many seemed to be operative here. "Civil rights"—the right to free­dom of speech and assembly, the right to vote—were still respect­ed. But everywhere he heard it being said that "human rights" were more important than prop­erty rights. People seemed to be losing the sense that the right to own is a human right, an inex­tricable part of the tissue of free­dom. Their logic perverted by the growing opinion that "rights" are a dispensation of government, not antecedent to the formation of government, people were get­ting the idea that rights can be made divisible by the wish of a majority. They were no longer able to apply the laws of physics to political "science." The laws of the material and corporeal world, no less than the laws of the spirit, should have told them that without ground to stand on nobody is really free to do any­thing else. The right to free speech and the right to own a Merganthaler linotype machine make a seamless web.

Historical Evaluation

How had the theory that rights are a political "grant," not a man­ifestation of the natural world, invaded the America that had produced the first great "natural rights" Constitution? To get to the bottom of this question, Dr. Dietze undertook the long "re­evaluation" that has resulted in his In Defense of Property. This book begins, in a way, with pre­history, for Dr. Dietze has been impressed with recent biological studies which prove that animals, whether carnivorous or vegetar­ian, will defend what they con­ceive to be their own living space. The property sense is funda­mental to life even before life is capable of formulating the idea of law.

Dr. Dietze traces the property idea as it developed in the ancient world. He follows it on through medieval times, noting that the scholastics proclaimed the "prop­erty right" as both "natural and good." All of this is rather famil­iar history. What is not so famil­iar is the Dietze exposition of the ideas of Rousseau. Rousseau, it ap­pears from Dr. Dietze’s refer­ences, did not think of the prop­erty right as being at the mercy of his "general will." "Property," said Rousseau in his Discourse on Political Economy, "is the true foundation of civil society." He didn’t propose that a mere vote of 51 per cent of the people (enough to compose a "general will") should be permitted to jeopardize the natural right of ownership.

Napoleon’s Code

If this is an unfamiliar Rous­seau, the French Revolution’s re­spect for property will be equally unfamiliar to most modern read­ers. Dr. Dietze points out that the famous French Revolutionary Declaration of the Rights of Man and Citizen of 1789 followed the American Founding Fathers in protecting property "as much as other liberal rights." Luckily, the equalitarians and the levelers of the French Revolution, a minor­ity, failed to institute an eight­eenth century form of socialism.

When Napoleon, the inheritor and "protector" of the Revolution be­came the dictator of France, he put the "imprescriptible" right of property into the famous Code Napoleon. This civil code freed property in France from the shackles of the ancien regime, giving owners the right to "enjoy and dispose of things in the most absolute manner." The Napoleonic civil code came to be imitated all over Europe.

Undermining the Tradition

Dr. Dietze calls the English utilitarian, Jeremy Bentham, a defender of property, but once a second and third generation of utilitarians had elaborated the pragmatic philosophy that a "thing is true if it works," it be­came more and more difficult to defend the absolute inviolability of the property right. Dr. Dietze has some fascinating pages bear­ing on the rise of the Christian Socialists in England and the "Social Gospel" clergy in America. Reacting against the idea that property is a "natural" right, these soft-sell advocates of the theory that the possessions of men are held on sufferance, depending on the individual’s willingness to use them for the benefit of "soci­ety," did more than Karl Marx to undermine the whole edifice of antifeudalistic classical liberalism.

The Christian Socialists "sold the pass" in the countries west of the Rhine. In Germany, the "socialists of the chair," in com­bination with the Prussian Bis­marck, led the retreat from the Code Napoleon view of the sanc­tity of property. Adolph Wagner of the University of Berlin stressed the notion that private property is a "social-legal institu­tion," based on the "life of the community as the source of law." Wagner’s type of "historicism" impressed young American econ­omists who studied in Germany in the latter part of the nine­teenth century. Among these economists were Richard T. Ely and Simon Patten. It was under Ely’s direction that the American Economic Association, formed in 1885, departed from classical the­ory to embrace the idea that prop­erty rights must be "adjusted" to new social conditions.

The Law Takes New Meaning by Court interpretation

After the economists had been conquered by the "socialists of the chair," the jurists were next in line. Oliver Wendell Holmes, Jr., and Louis D. Brandeis suc­ceeded in writing many of their views on the relativity of the property right into the fabric of the law. The New Deal in Amer­ica followed the Holmes-Brandeis line. In France and Germany, all the various twentieth century governments have been "property socializers." Dr. Dietze describes how Rudolf von Jhering in Ger­many and Leon Duguit in France sparked the legal revolution in their respective countries that enshrined the "positive law" (i.e., the theory that "law" is what­ever a majority says it is) as something far more "realistic" than the old idea that "nature" creates the law for men to dis­cern and follow as best they can.

Dr. Dietze’s experience in America (he is a professor of political science at Johns Hopkins University) has not made him hopeful that recent trends will be easily reversed. Men now pre­fer democracy (which is a means of participating in government) to liberty (which should be the end of government). "We have lost the sense for the propriety of property," he says. And now that this "sense for the propriety" of the property right has gone, how can men count upon a guar­anteed possession of the leverage position upon which all other rights depend? One must have an inviolable fulcrum if one hopes to move the earth. And one must have an inviolable place of retreat if one is to support oneself de­spite the policies of governments.

Law, Liberty and Psychi­atry by Thomas Szasz, M.D. (Macmillan, $7.50).

Reviewed by Robert M. Thornton

Dr. Szasz’s book may not win him friends among his fellow psychia­trists, but libertarians should ac­claim his learned and well-written defense of individual liberty against the encroachments of what he calls the "therapeutic State." If his The Myth of Mental Illness (Harper, 1961) provoked a few dozen screams from his profes­sion, Law, Liberty and Psychiatry ought to set off a couple of hun­dred. But the uproar will not ruffle the man in the least, for he is not of raid to stand alone against the opinions of "experts" or majorities.

It is Dr. Szasz’s contention that "mental illness" does not exist—unless the term be used as a syno­nym for brain disease, in which case why not call it that and avoid confusion? The term "mental ill­ness" implies obnoxious and so­cially deviant behavior; it is label­ing a man "sick" when he may be merely different. A neurosis, un­like a disease, is something a per­son is, not something he has. This whole subject is dealt with at length in The Myth of Mental Illness, but only briefly in the book under review.

The present book shows the in­creasing use of the concept of "mental illness" in the courts. Whereas formerly the accused was regarded as a man who de­served punishment for his crime, he is now frequently looked upon as a sick man who needs treat­ment for his illness. Many a law­breaker has entered a plea of in­sanity in order to avoid the pen­alties for his crime. This prac­tice has become more common in recent times. But today some­thing new has been added; we hear of cases where the author­ities and not the defendant enter the insanity plea. The defendant may plead guilty and request punishment as prescribed by law; but to no avail if the authorities decide he is, or at the time of the crime was, mentally incom­petent arid is thus not legally re­sponsible for his acts.

The danger to individual lib­erty here is not as remote a threat as some might think. In the past few years two men criti­cal of the activities of the federal government have violated certain statutes and been arrested. But instead of simply being punished according to law with fines or imprisonment, they have first been examined by psychiatrists to determine if they were mentally competent and responsible for their acts. Now whatever one may think of these two men or their political views, is it not a ridicu­lous and terrible thing to ques­tion their sanity because they dis­agree with the majority or with public officials? It requires but little imagination to see how a totalitarian state can use psychia­try as an effective tool to squelch opposition.

But, someone may exclaim, what of our constitutionally guar­anteed liberties? Well, it is true that the Bill of Rights has not yet been repealed, but, as Dr. Szasz points out, its guarantees of individual freedom are neces­sarily ignored in psychiatric cases; the legal safeguards which protect the accused in criminal cases are by-passed when some authority rules that he is unable to stand trial as a responsible per­son.

This nation has always prided itself on having a government of laws, not of men. But in psychi­atric cases the Rule of Law is re­placed by discretionary treatment which, while it may be occasion­ally lenient, is always arbitrary and subjective. No intelligent per­son would claim perfection for our present system of courts, juries, and judges, but how much better is their impersonal ma­chinery than any conceivable sys­tem of administrative law under which the alleged lawbreaker would be at the mercy of an in­dividual or committee not, bound by laws or subject to review by a higher court?

Dr. Szasz underscores one of the strange paradoxes of our time: Though relativism is all the rage among the so-called intellec­tuals, these very same people in­sist that some men are so gifted as to possess the right to impose their rule over those not so well-endowed. Hence, their opposition to the market economy under which each individual makes his own plans, and their hankering for a centrally directed economy under which the super minds and master planners can direct the efforts of their fellow citizens. They are impatient with con­gresses and their seemingly end­less debates; they prefer an ex­ecutive vested with almost un­limited powers to make decisions for the rest of us.

Dr. Szasz offers a well-reasoned warning that we had best heed before it is too late. If the present course continues, the consequence will be a return to a status soci­ety, in contrast to our present contractual one. Would this not be a retreat into barbarism?

Should we not treat all persons as responsible for their acts—while tempering justice with mer­cy? Some people do need help with the problems of living, even psychiatric help. But they should be helped back to responsible man­hood and womanhood. Then they may grow and develop as human beings. We become more human by becoming more responsible. The irresponsible life, like the unexamined one, is not worth liv­ing.         

***

Ideas on Liberty

The Warning

Mental debasement is the greatest misfortune that can befall a people. The most pernicious of conquests which a state can ex­perience is a conquest over that just and elevated sense of its own rights which inspires a due sensibility to insult and injury; over that virtuous and generous pride of character, which prefers any peril or sacrifice to a final submission to oppression, and which regards national ignominy as the greatest of national calamities. The records of history contain numerous proofs of this truth…. The nation, which can prefer disgrace to danger is prepared for a MASTER and deserves one.

ALEXANDER HAMILTON

February 21, 1797