Alejandra Mancilla

Given the conceptual gap in the global justice debate today (where most of the talk is about the duties of the rich, but little is said about what the poor may do for themselves), in this article I reintroduce the idea of a right of necessity. I first delineate a normative framework for such a right, inspired by these historical accounts. I then offer a contemporary case where the exercise of the right of necessity would be morally legitimate according to that framework – even though illegal and probably condemned by the standard moral norms. The case is that of a small group of Paraguayan campesinos (small farmers) suffering from the effects of a severe drought. In the third part, I introduce the concept of noncivil disobedience: I call an act of noncivil disobedience a conscientious, public, illegal and forcible act whose performance, while not necessarily intended directly as a means to bring about social and/or political change, may help to trigger these changes indirectly. In the fourth part, I suggest that certain instances where the right of necessity is overtly exercised – as in the case of the famine-struck Paraguayan campesinos – may also be interpreted in terms of noncivil disobedience, insofar as they serve a double function: as a means of satisfying immediate need, and as a marker of discontent in a society where the equal rights of individuals are a nominal ideal which remains unfulfilled in practice. I then address two objections that may be raised against resurrecting the idea of a right of necessity and identifying it in certain instances with noncivil disobedience. I conclude by suggesting that, at the point of convergence between the two, a basic right like the right of necessity recovers its value as an active, (rather than passive) entitlement of its holders, while the use of force enters the picture as a legitimate means that – at least under certain circumstances – may be resorted to within the limits of civil society.

_ Source: _Volume 36, Issue 1, pp 63 - 77 At the basis of modern natural law theories, the concept of the _suum_, i.e. what belongs to the person, has received little scholarly attention despite its importance both in explaining and justifying not only the genealogy of property, but also that of morality and war. In this essay I focus on Grotius’s account of the _suum_ and examine what it is, what things it includes, what rights it gives rise to, and how it is extended in the transition from the state of nature to civil society. I then briefly suggest that reviving this concept could help to illuminate the current discussion on the foundations of basic human rights, and to re-evaluate cases where these seem to clash with property rights

John Locke’s justification of property rights starts with the idea that mixing one’s labor with previously unowned (natural) physical objects entitles one to ownership of the resulting product. American philosopher Robert Nozick presents this idea in Anarchy, State and Utopia (1974), but notes that things are not as straightforward as they might seem. On the contrary, Nozick writes, there are instances where by mixing one’s labor with something in nature, one loses one’s labor without making any gain: “If I own a can of tomato juice and spill it in the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?” The answer is obviously the latter, he argues; and he suggests that what Locke really had in mind was that what one ought to own is not the full resulting product of one’s labor, but rather the value added to the original product before the laboring took place. In this article, I claim that one of the most common arguments supporting patents over genetically modified organisms (GMOs) rests on the same misunderstanding. I present three possible defenses that might be given to support it, and show how they fail.

From the end of the twelfth century until the middle of the eighteenth century, the concept of a right of necessity –i.e. the moral prerogative of an agent, given certain conditions, to use or take someone else’s property in order to get out of his plight– was common among moral and political philosophers, who took it to be a valid exception to the standard moral and legal rules. In this essay, I analyze Samuel Pufendorf’s account of such a right, founded on the basic instinct of self-preservation and on the notion that, in civil society, we have certain minimal duties of humanity towards each other. I review Pufendorf’s secularized account of natural law, his conception of the civil state, and the function of private property. I then turn to his criticism of Grotius’s understanding of the right of necessity as a retreat to the pre-civil right of common use, and defend his account against some recent criticisms. Finally, I examine the conditions deemed necessary and jointly sufficient for this right to be claimable, and conclude by pointing to the main strengths of this account. Keywords: Samuel Pufendorf, Hugo Grotius, right of necessity, duty of humanity, private property.