Drop Everything and Emulate, III
posted by Mark Edwards
Here’s a question I pose to my property students when we begin to study takings: is that property which the law declares to be property? Or, are there some things that can never be property, no matter what the law says?
It’s a simple question, but answering it has ripped entire nations into pieces, including the United States. It was U.S. Senator Henry Clay, arguing that abolishing slavery would be a massive taking that would require just compensation to the slave-owners, who said, “that is property which the law declares to be property.”
Once they realize the context of his statement, most students disagree with Clay. But that begs the next question: if the law doesn’t give us the final word on rights, including property rights, then what does?
I then take the opportunity to introduce them to a dapper young attorney who argued that that certain fundamental rights inhere in man – including property rights, and in particular the just allocation of property rights in natural resources.

He was the first attorney of non-European heritage to practice law in South Africa. He later returned to his home country, India, where he became an advocate and leader in a struggle for independence, democracy and the fair allocation of property rights. A critical turning point in the struggle was a protest against the monopolization of an extremely important natural resource in his country: salt.
His famous Salt March to the Sea, which embodied his philosophy of civil disobedience and nonviolence, became the inspiration for Martin Luther King Jr.’s strategy. We study the Fair Housing Act, of which Martin Luther King was an advocate. It was passed one week to the day following Martin Luther King’s assassination, to honor him. In that way, I tell them, Gandhi’s legacy is so profound that it reaches all the way to this course to you.

Gandhi himself had been assassinated 20 years before Martin Luther King. How much of an impact for good did this lawyer have on the world? Consider the words of Prime Minister Nehru, informing the people that Gandhi had been killed: “The light has gone out of our lives and there is darkness everywhere. . . . We will not run to him for advice, or to seek solace from him, and that is a terrible blow.”
It’s far too much, of course, to ask students to be a Gandhi. We can’t all be the light of other people’s lives. But we can , occasionally, work for justice. And an attorney can be someone to whom others run for advice and solace, a wise counselor. That’s part of the tradition of our profession, and Gandhi embodied it.
November 22, 2008 at 1:00 pm
Posted in: Property Law, Teaching
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Responses (6)
Patrick S. O'Donnell - November 22, 2008 at 3:07 pm
Mark,
I hope you don’t mind if I note some books that readers not familiar with Gandhi’s life and writings, or with works on his politics and philosophy, might find helpful (I think these should be included in any list of the crème de la crème of an immense body of literature: Gandhi’s own writings [including correspondence] amount to over 90 volumes and the secondary literature would probably overwhelm the novice):
*Bondurant, Joan V. Conquest of Violence: The Gandhian Philosophy of Conflict. Berkeley, CA: University of California Press, revised ed., 1969.
*Brown, Judith M. Gandhi and Civil Disobedience: The Mahatma in Indian Politics, 1928-1934. Cambridge, UK: Cambridge University Press, 1977.
*Brown, Judith M. Gandhi: Prisoner of Hope. New Haven, CT: Yale University Press, 1989.
*Chatterjee, Margaret. Gandhi’s Religious Thought. Notre Dame, IN: University of Notre Dame Press, 1983.
*Dalton, Dennis. Mahatma Gandhi: Nonviolent Power in Action. New York: Columbia University Press, 1993.
*Fox, Richard G. Gandhian Utopia: Experiments with Culture. Boston, MA: Beacon Press, 1989.
*Iyer, Raghavan. The Moral and Political Thought of Mahatma Gandhi. Santa Barbara, CA: Concord Grove Press, 1983 ed. (1st ed., New York: Oxford University Press, 1973).
*Iyer, Raghavan. Gandhian Trusteeship in Theory and Practice. Santa Barbara, CA: Concord Grove Press, 1985.
*Iyer, Raghavan, ed. The Moral and Political Writings of Mahatma Gandhi. 3 Vols. Oxford, UK: Clarendon Press, 1986-87.
*Iyer, Raghavan, ed. The Essential Writings of Mahatma Gandhi. New Delhi: Oxford University Press, 1991.
*Juergensmeyer, Mark. Gandhi’s Way: A Handbook of Conflict Resolution. Berkeley, CA: University of California Press, 2002.
*Naess, Arne. Gandhi and the Nuclear Age. Totowa, NJ: Bedminster Press, 1965.
*Nanda, B.R. Gandhi and His Critics. New Delhi: Oxford University Press, 1985.
*Parekh, Bhikhu. Colonialism, Tradition and Reform: An Analysis of Gandhi’s Political Discourse. New Delhi: Sage, 1989.
*Parekh, Bhikhu. Gandhi’s Political Philosophy: A Critical Examination. Notre Dame, IN: University of Notre Dame Press, 1989.
*Sharp, Gene. Gandhi as a Political Strategist. Boston, MA: Porter Sargent, 1979.
*Wolpert, Stanley. Gandhi’s Passion: The Life and Legacy of Mahatma Gandhi. Oxford, UK:
Oxford University Press, 2001.
Those not wanting to wade through the many volumes of Gandhi’s writings should find Iyer’s three volume edited collection above enormously useful (he has a one volume edition as well).
Iyer and Parekh are, by my lights, far and away the best at explicating Gandhi’s moral and political philosophy. Iyer’s book, The Moral and Political Thought of Mahatma Gandhi (1st ed., 1973), is a nonpareil treatment of the subject. Iyer was one of my undergraduate teachers in Political Science and his wife is my best friend: only the former fact has had some influence on my judgment).
By the way, Gandhi’s views on property fit within a “trusteeship” framework (see the Iyer text above, published by a small press here in town).
Eigernorthface - November 22, 2008 at 4:31 pm
E.F. Schumacher wrote a book in the 1970′s called “Small is Beautiful”. It embodies and extends upon the fundamental principles of Gandhian economics. It’s not very scholarly, which means it’s easy to read and understand. Schumacher himself was an economist for the British Coal Board. He was a truly profound and radiacal thinker in his own right, but he gives most of the credit for his world re-shaping ideas to Gandhi’s values, economic teachings and personal example.
Schumacher went on the write “A Guide for the Perplexed” which is OK. It’s not earthshaking like the Small is Beautiful book.
By the way, if Obama does the things he says he wants to do — green power, conservation, local economies, communities, etc you may see a lot of ideas floating around that will come right out of Schumacher, or be closely parallel to Small is Beautiful in content, intent, and moral posture.
The legacy of Mahatma Gandhi is all about the world, not about Mahatma Gandhi. That was always the idea. The ripples are in the deeds — our deeds today!
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Carol - November 22, 2008 at 6:42 pm
The legacy of great men in our World do produce ripples which “are in the deeds —our deeds today.”
Ghandi always knew that a Christian nation who prided itself on “the Rule of Law” would eventually be forced to do the “right” thing when Christianity AND The Law could no longer support the evil of the status quo.
Yes, it would be wonderful if more attorneys were interested in being wise counselors but those who work for large law firms have to bill so many hours a month, or out they go. At $200 to $400 an hour and with billing for Email and Telephone messages as well, only the rich can afford to do business with attorneys in large law firms. Those attorneys who work on their own or only with a partner face great competition and can’t afford to give their time and services away.
In modern times, unfortunately the law is more about “product” and money than law and justice.
I wonder what Ghandi would have to say about “securitization” and especially since India appears to have bought heavily into securitization in the past 20 years. Of course, India and China still have their slave classes to do the hard and dirty work.
Patrick S. O'Donnell - November 22, 2008 at 7:38 pm
Let me provide a few examples to account for why it is misleading if not mistaken to speak of Gandhi as a defender of “property rights” simpliciter, which is not to say he would not often defer in many if not most matters to the prevailing legal regime in which he found himself (hence he could respect and abide by a ‘property rights’ legal order). For Gandhi, however, the theory of trusteeship alone was compatible with the principle of nonviolence (‘Theory of Trusteeship,’ Harijan, Dec. 16, 1939). The following is from the Iyer text on Gandhian Trusteeship in Theory and Practice (1985):
“[I]t is only through daily moral choice and the meritorious use of resources that we sustain our inherited or acquired entitlements. For this reason, the very idea of ownership is misleading and, at root, a form of violence. It implies rights and privileges over Man and Nature that go beyond the bounds of human need–although not necessarily beyond the limits of human law and social custom. It obscures the generous bounty of Nature, which provides enough for all if each holds in trust only what he needs, without excess or exploitation.”
“Ownership…is truly a costly and illusory attempt to ensure permanency and succession. It gives birth to unwarranted attachments and insupportable expectations. The selfish grasping for possessions of any kind not only violates the deeper purposes of our human odyssey but eventually breeds possessiveness and greed, exploitation and revenge. This appalling moral malaise leads to inordinate self-assertion and self-projection which can only yield distrust, sorrow, and ‘loss of all.’ But when we attain the sacred mental posture of the trustee who regards all possessions as held in trust for the good of all, we can progressively approach the high spiritual state of mental renunciation [This is the Bhagavad Gita's--yogic--ideal on 'non-attachment' that Gandhi endeavored to instill in his daily life.].”
“The principle of trusteeship in its application to the equitable distribution of wealth, as well as to the non-violent socialist reformation it underpins, is practicable because it does not require everyone to undertake it all at once. Unlike most socialists who reason that they must seize the power of the State before instituting effective reforms, Gandhi held that enlightened individuals could initiate the process of divesting themselves of what is unnecessary while becoming true trustees of their own possessions.”
“[Gandhi] held to the revolutionary ideal of equitable [i.e., not mechanically equal] distribution, which would not only be possible but necessary in the non-violent socialst State.”
“A trustee has no heir but the public.”–M.K. Gandhi, “A Question,” Harijan, April 12, 1942.
“I am not ashamed to own that many capitalists are friendly towards me and do not fear me. They know that I desire to end capitalism almost, if not quite, as much as the most advanced Socialist or even Communist. But our methods differ, our languages differ. My theory of ‘trusteeship’ is no make-shift, certainly no camouflage.”–M.K. Gandhi, “Theory of Trusteeship,” loc cit.
“A trustee is one who self-consciously assumes responsibility for upholding, protecting and putting to good use whatever he possesses, acquires or earns. For an individual to be a trustee in any meaningful sense implies that he is self-governing and morally sensitive. He is acutely aware of the unmet needs of others and, simultaneously, is capable of controlling and transmuting his own appropriating tendencies. He is deeply committed to cultivating his most generous feelings and altruistic hopes for others while consciously and patiently freeing himself from all recognized exploitative attitudes and relationships. He strives to become self-regulating, reliable, and sacrificial. But he must become so in a courageous and intelligent way. He must learn to think and feel altruistically. He must learn by degrees the heart’s etiquette–to speak, touch and act with the utmost purity and solicitousness. He must become, by virture of self-training, very attentive to every resource at his disposal–both inner and outer. It is precisely because he sees his abilities and possessions as belonging to God, mankind or to future generations that he is eager to use them to the maximum. His posture towards his overall resources is therefore not one of a lazy or selfish indifference. He is not concerned with hoarding nor is he fearful of multiplying his gifts, talents and possessions. Like the good servant in the New Testament, he wishes to increase his meagre ‘talents,’ but not for his own sake, nor merely for his own family.
The best trustee is indeed someone who has atttained an inward moral balance. he is serenely detached, magnaminous and imaginative. But his detachment is never cold or narrow. It is an expression of his unshakeable confidence in the ontological plenty of Nature and the inexhaustible resourcefulness of Man. His steadfastness and trustworthiness are principally due to this broader focus of concentration. Likewise, his motive is benevolent and self-sustaining because it is not mixed with the turgid waters of personal aggrandizement. Instead, he expresses a quality of love and appreciation for what he has that enhances its moral and practical value for others. He might even possess little, but his sense of when, where and how to use what he has increases its potential good a hundredfold.”
Mark Edwards - November 22, 2008 at 8:22 pm
Thank you very much for that, Patrick. It’s fascinating.
The philosophy of trusteeship has, not surprisingly, some striking similarities to the public trust doctrine, which India has has adopted. Of course, an important difference is Gandhi’s emphasis on individual trusteeship, rather than government trusteeship, but the government is theoretically acting in our stead.
I don’t think it’s quite right to say that Gandhi was not an advocate for property rights, unless by property rights we mean the narrow private property sense embodied in the Henry Clay quote. In fact, I think he was a very stong advocate for a conception of property rights which as you have shown was rooted in the idea of trusteeship, which is very consistent with his actions with regard to natural resources such as salt. Much of his struggle was about a re-allocation of property rights on a more equitable basis.
Patrick S. O'Donnell - November 22, 2008 at 9:50 pm
Of course there can be different conceptions of property rights (as Waldron reminds us, private property is a concept of which there are many conceptions) but insofar as a theory is fundamentally grounded in a conception of “ownership” in a strong sense I would think Gandhi’s notion of trusteeship results in a rather different idea of the meaning of “property rights,” and probably not the one that comes to mind for most people (although perhaps for many legal purposes, these differences may be inconsequential). There certainly are values central to trusteeship that are not front and center or perhaps even part of some rights-based theories. All the same, I can well imagine Gandhi’s trusteeship theory supporting property rights of a kind.
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