1. Centrality of obligations and its variance

In the realm of law, obligationsFootnote ³ and rights are the prism through which law is understood and defined. Obligations are also contested as legal and moral obligations overlap, and the development of law primarily evolved through the narrative of rights. In the last few centuries, we have seen a dominance of “right-based approach,” where obligations are considered as accessories to rights. This approach has skewed the very narrative that it was supposed to protect individual claim, which is dependent upon its beneficial attributes to the society and also to the personal interests, if not in contradiction to public interest. Any such right also justifies the claims of the individual to coexist harmoniously with a sense of collective consciousness. More importantly, the evolution of the right-based approach strengthened the individual claim and led the legal systems to consider it as the primary concern for resolution of discontent among the populace. This approach led the law to categorise human beings, with different capacities and legal capabilities. As we have seen, in ancient times, slaves, women, foreigners, and non-owners of land were not considered as individuals with the similar rights and were devoid of the rights, attributing citizens. Later, in the Middle Ages, slaves, women, religious minorities, indigenous people, and people of colour were subjected to obligations, but not rights as the white European men. After colonisation and industrialisation, workers, labourers, people of colour, and people of certain race, class, and caste were constitutive of having the obligations and a limited and conditional scheme of rights. This socio-political order influenced and allowed the conception of rights over obligations and enabled the shift towards a right-based approach, in favour of those who could assert their rights. Revolutions and discontent against the monarchy also led the debate to focus on individual rights as the core of human freedom.Footnote ⁴

Under a right-based approach, how do we take obligations into account? Without understanding the content of rights against which the obligations were cast, obligations were relegated to the periphery. Under private law, for any non-owner, to fulfil his obligation he needs to be informed of the nature of right and its relation to the holder. If the obligation is negative in terms of non-interference, then it may not be relevant for obligation holder to know whether the holder of the property is the owner, a mortgagee, a lessee, or a person with easement right or with an adverse possession; but in case of positive obligations where performance is expected, perhaps the nature and content of rights and for whom the obligation of performance matters, is important. As in such cases, obligations are derived out of the nature of right and relates to the person of such right exclusively. Even when property relations are revealed, the opaqueness and complex form of property rights make it a near impossible task for a person with a positive obligation to perform where the ownership may be dispersed, with multiple rights given to different entities, whether natural or legal entities, and who are not identifiable by way of contract or specific legal duty cast by law.

Legal obligations may also conflict. A duty or obligation to provide for your family may conflict with the duty to provide military service, and obligations towards personal faith of religion may go against the duty to wear a particular uniform in your work place. One may be required to wear a helmet in the form of a protective gear instead of the religious turban or a burqa. The law may take priority in terms of conflict after careful consideration, but as far as the individual with obligations are concerned, rights in itself may require an understanding of obligations. To perform obligation that one owes, requires an understanding of the nature and content of not just rights, but also the right holder who can give effect to a claim. Apart from legal obligations, the moral obligations to speak up or refuse to act in way where one’s consciousness does not allow one to act, can be seen as a conflict between positivist and natural law scholars, or between what law is and what law ought to be. In the Hart–Fuller debate, Lon L. Fuller argues in response to Hart, that immoral ends should not be accomplished through law properly so-called (Fuller, Reference Fuller1958, p. 630), unlike what Hart refers to as the fidelity to legalityFootnote ⁵ or the internal morality of law. The fact that interaction between morals and law enrich each other, and obligations that are instituted either as moral or legal are complex in nature, but obligations in themselves are to be seen as implicit and advanced through law and morality, rather than a narrative of right. Though the abstractness of the nature of obligations have caused it to anchor on rights, a narrative that is best suited to assert individual claim, especially in a landscape where individual is situated in a socio-political structure of power and hierarchy.

2. Moral justifications to claims of property as rights

The shift from natural law to rights or from law to rights has been a modern phenomenon, it was not strange that there was no word to indicate “a right” in ancient Greek law, at least in the modern sense of the word, though the idea was fairly implicit and well-understood (Miller, Reference Miller1995, p. 91). Over a period of time, a combination of factors led to a “rights”-centric narrative as an expression of individual freedom and liberty. The right-centric approach was marked by the failure of the state or monarchy to protect individuals and the tyranny that it unleashed by way of authoritarian rulers. The creation of class among the populace and the divisions within society made vulnerable the individual freedom, necessitating a rhetoric of rights as a mark of rebellion. The rebellion of individuals against the state can be witnessed in classical and mediaeval philosophy and their argument for a state to be anchored in public welfare.

As an attempt to balance the power structure, the natural law scholars and the social contract theorists brought individuals to the centre of society, where one’s political, social, and economic rights were ascertained as against the state and the society. Even Thomas Aquinas, theologian of the High Middle Ages argues for a mixed government: as a form given by God to the chosen people, marked by the rule that all shall have some part in the rule and all love such an order and guard it (Blythe, Reference Blythe1992, p. 51). Aquinas who interpreted Aristotle, reflected upon Aristotle’s idea of democratic society and its institutions. Sharing of power is to be done through political office, and it requires tempering the power of the King. To avoid tyranny, a counsel of the wise persons, with superior authority is recommended by Aquinas. In an Aristotelian sense, the participation is to be assured through representation to institutions and to the offices of government. It was the failure to check the balance of power that led to the dominance of utilitarianism, eroding the principles of natural law (Bentham, Reference Bentham and Bowring1962, p. 105), where Bentham attacked natural rights as simple nonsense. It was the failure to respect the natural law by rulers that led to the rhetoric of natural rights. Later, in the nineteenth and early twentieth centuries that were marked by exigencies of totalitarian regimes or monarchies, it dawned upon the citizenry that human beings have the right to life, liberty, and to the protection of their property. This eventually led to the demand of constitutional protection, general welfare, bill of rights, and judicial review that prompted a right-based approach, contrasting individual rights as against the state in an evolving democratic space. As Ronald Dworkin suggests that “a right is a claim that it would be wrong for the government to deny an individual even though it would be in the general interest to do so” (Dworkin, Reference Dworkin1978, p. 269).

To understand obligations is also to understand the nature of authority of the state or rights of the individuals in context to which obligations are understood. H. L. A. Hart refers to “content-independence” obligations, as their existence do not depend on the nature or significance of the actions they require or prohibit (Hart, Reference Hart1982). The three predominant theoretical approaches—sanction-based account (Hacker, Reference Hacker and Simpson1973)Footnote ⁶ , practice theory (Green, Reference Green1985),Footnote ⁷ and justificatory account of obligations (Raz, Reference Raz, Hacker and Raz1977)Footnote ⁸ presuppose state with its power to impose obligations. The purpose behind imposing rules is to govern human beings, who create and shape normative relations, establishing a direct bridge of legal obligation between people. An obligation of a parent to provide for the child, an employer’s obligation to provide reasonable and fair conditions of work, a debtor’s obligation to satisfy the debt towards the creditor, and so on.

Law may define obligations more effectively within its domain where law proscribesFootnote ⁹ human activities. Outside the legal domain, obligations are governed by customs, norms, and practices; but in the realm of mind and conscience (Sibley, Reference Sibley1970)Footnote ¹⁰ the questions of morality remain a contested terrain in the governance of human actions. Much to the contradiction, law itself has been shaped by our consciousness, by its rather ambivalent and paradoxical status, with some considering it as a tool of social control, and others in terms of “rule of law.” Still, law and legal principles as the epitome of human achievement, conveniently ignore the underlying dilemmas of obedience and disobedience to law. Our obligation to obey law, historically, has been conditioned by the role that law defines us to play in society. Hence, the right-based approach to property can be seen as a product of human society where rights were specifically designed to cater to humans rather than any other life forms. As Walter Mignolo notes, the rhetoric of human rights gained momentum rather than what should have been called as life rights (Mignolo, Reference Mignolo, Douzinas and Grearty2014).Footnote ¹¹

However, this anthropocentric view has its own share of complexities. Historically, divisions, demarcations, and discriminations were part of the genealogy of rights (Mignolo, Reference Mignolo, Douzinas and Grearty2014). Even when considerable thought was given to legal persona, granting the entities, like corporations, artificial intelligence, religious symbols, and even nature, the legal personality was dominated by an anthropocentric approach. Much has been said over the stratifications of property rights in terms of gender, race, caste, creed, and colour, with justifications ranging from white man’s burden to survival of the fittest to intelligence and the divine power (Macpherson, Reference Macpherson1962).Footnote ¹² More importantly, the anthropocentric worldview can be seen as a moral failure for property scholars, where property makes up the foundation of our justification for the Anthropocene world, legitimising a right-based justification that humans are only capable to have rights and the correlative obligation (Mignolo, Reference Mignolo, Douzinas and Grearty2014, p. 164)Footnote ¹³ giving themselves the dominium over the world. Hence, rights ought to be seen as a social phenomenon deriving its succour from society and their function relates to society. They are claims of the individual in rem or in personam constitutive of duties, and it is the interpretation of duties and obligations that justifies the rights and also defines the contours of rights. To expand and to understand this argument the next section provides a trajectory that law has taken and evolved through the earlier legal and moral philosophy. It also suggests a significant shift from Natural law and later approach of modern philosophy on questions of rights and obligations.

3. Between classical and modern thoughts: The human factor

In order to contextualise the Gandhian philosophy and understand his arguments and approach to property rights that are brought out at the later part of the article by laying out ethical and moral obligations, I would like to chart the trajectory of property obligations and its moral significance through certain philosophers who precede Gandhi, like John Locke, Thomas Aquinas, and later Jeremy Bentham. In doing so, I would like to point out the moral obligations where religion, reason, and natural law have played a significant role and what led to the later shift in the approach to property rights. It further helps us to understand Gandhi’s vision as he draws his arguments from moral and spiritual knowledge that has its roots in religion and political institutions, which would also help us to contrast Gandhi with Rawls later in this article.

The genealogy of rights, emerging out of property scholarship, found justifications from philosophers, across time and space. Foremost among them, John Locke, whose philosophy dominated the western and modern political thought, invoked justifications legitimising claims over private property as an expression of individual’s right asserted through labour.Footnote ¹⁴ The labour entails legitimate rights by external manifestation of objects, but with a caveat, of having “enough and as good left in commons for others” (Locke, 1963, p. 329) to appropriate. Somehow this acquisition eventually gave exclusive right for all time to come, even excluding any other person who might be willing to spend more labour on the property than the one who has acquired it. The threshold of labour spend to acquire the property being a matter of debate, the Lockian political philosophy imitated a social contract to legitimise the state. It also strongly held that we have a duty to obey when only we consent to obey, legitimising the power of the state to regulate, by anchoring its power on implied or explicit consent of the people. The state draws its legitimacy in the name of protecting and providing for the people with basic rights. However, the contents of what liberty or property is and should mean, as inclusive of basic rights for the individual, was not the prerogative of the state to define, but nevertheless through regulation they have come to exercise power and control. Locke’s strong protection granted to individual made more sense in the political context of his writings and as a critique to Robert Filmer’s royalist defence of absolute monarchy (Locke, 1963; Dunn, Reference Dunn and Yolton1969). In essence, it also strengthened the foundation for unlimited acquisition, possessive individualism, and anthropocentric view of the world by freeing ownership of social obligation (Macpherson, Reference Macpherson1962; Strauss, Reference Strauss1950). In the context of settlers in America, Locke has been idolised for his labour theory. A view that wastage or non-utilisation of land by the indigenous population justified rights of settlers who could “utilise” or to say “exploit” the resources, eventually legitimising the colonisation beyond America (Murray, Reference Murray2022, p. 6).

The political institutions during MiddleAages, in line with the religious beliefs of the day favoured an anthropocentric approach. Thomas Aquinas had argued, placing the individual at the centre of property debate, that property rights are instrumental to deeper and more fundamental human goods. Property, whether private or communal, is available to man because he possesses the right reason. In framing such an approach anchored in religious beliefs, Aquinas argued that Man’s legitimacy for dominion comes from his intellectual capacity, and hence, by virtue of his reason and will, (he) makes use of things for his own benefit (Parel, Reference Parel, Parel and Flanagan1979, p. 97). Aquinas’s theological expression that God has made the earth and man by virtue of his intellectual nature has been granted dominion over it, clearly indicates the superiority of man over other beings justifying the acquisition based on superiority that led to intellectual, racial, and other classifications and categorisations among and between different life forms. Although Aquinas suggests that the King in the absence of a direct divine intervention need not be considered superior, unlike the case of the first Jewish Kings, the onus is on the population to temper his rule to check the tyrannical rule that may ensue (Blythe, Reference Blythe1992, p. 48). In suggesting a mixed government, as Tierney points out, the attempt of Aquinas could be read as to create a possibility of combining the unity of monarchy with the wisdom or aristocracy and the liberty of democracy. Aquinas himself suggests that to promote distributive justice in Summa Theologiae that forms the fabric of the society is where more is given from the common goods as the individual holds more principality in the community assessed through virtue in aristocratic community; by wealth in an oligarchic and by liberty in a democratic society (Blythe, Reference Blythe1992, p. 52). Like the Dominican tradition to which Aquinas belonged with a constitution of its order, Aquinas strongly believed that general principles of government should reflect human nature. The reason all should have a share in power is ultimately that people are unsatisfied and will become rebellious if they cannot participate. Hence, the question of governance is not metaphysical for Aquinas, but reflects the capacity to promote common good achieved only through representation of the people and their ability to restrain power of the ruler.

As Tierney notes, at least in theory Aquinas seems to have applied the same principles of mixed government to the church and for institutions of pope, cardinals, and general council (Tierney, Reference Tierney1982, p. 8). Aquinas’s own work on Aristotle was also an attempt to show that their philosophy is not opposed to faith (Elders, Reference Elders2009, p. 32). The most important Dominican contribution made by Aquinas reflected upon how faith and reason complement each other, and the how the two are eminently compatible, as God cannot be a source of contradiction or of error, but a reflection of truth (Legge, Reference Legge2016, p. 317). Whereas Aquinas’s great Franciscan contemporary St. Bonaventure unlike Aquinas, argued that philosophical reason is in radical need of divine assistance and cannot operate properly, ordinarily at the natural level and intrinsically inadequate without God’s assistance (Nieuwenhove, Reference Nieuwenhove2010, p. 346). Responding to this criticism, Cajetan, who stands at the threshold between the mediaeval Dominican theological tradition and the early modern period clarifies that, we can say that we believe something because we judge, by our natural powers, that it is worthy of our assent but, Aquinas excludes this kind of faith from being numbered among the theological virtues, and if you attend closely to the reason, you will see that acquired faith with respect to supernatural thing is not a virtue.

For Aquinas, human law is just, only in so far as, it is reasonably related to the achievement of the common good; the law has been enacted by competent legislator; and the burdens it imposes are not unreasonably distributed. The system of law, hence, is effective to conduct human action as it provides a standard for right action (Ross, Reference Ross1974, p. 87). Law is hence the dictate of practical reason. It is in this larger context of a governance structure that Aquinas makes a distinction between possession (mere possession) and proprietas having the power of dominium (private property). In classical law, unlike dominium, possessio was considered as “to possess something was to occupy it and use it (usufructuary rights) but not to have private property rights in it” (Tuck, Reference Tuck1979). Richard Tuck notes that during mediaeval period, the use of terminology of dominium naturale was expanded to include possessio, the use rights, to mean functions of natural and not civil order where one could validly exclude others. This expansion of conception of dominium, Tuck argues, allowed Aquinas to expand usufructuary possessio into natural dominion ascribing the powers of property to mere possession. The law might be a reasonable conclusion from a broader principle that we ought to encourage the alienation of land in order to maximise equality of opportunity. The principle that we ought to maximise equality of opportunity does not entail that land must be freely alienable, and hence easements must be discouraged. A human law is a conclusion from natural law when, under the circumstances, it is necessary to give effect to a policy that preserves life, creates or maintains social order, and provides basic rights. The conclusion need not be actual, for the relation to justify. But for Aquinas, such relations also need to explain how such laws may share in the obligatory force of natural law. Aquinas realises that the effectiveness of a legal system is on the internalisation of the law as a standard of right action, and not on the fear of sanctions. The moral status of the law lies in the importance to the realisation of the common good and must be explained within an adequate general theory of law.

Later, in stark contrast, utilitarianism overcame with great success the dominance of natural rights philosophers by upholding liberty, and further arguing that rights were founded on utility. Jeremy Bentham has argued that property is entirely the creation of law and there is no natural property. Law is neither arbitrary, supported by force nor emerges from fear as in Hobbes theory but, emerges out of the need for people to “…participate more or less in the pleasures, advantages, and resources of civilized society; their industry and labour place them among candidates for fortune; they enjoy the pleasures of acquisition; hope mingles with their labour” (Newcomb, Reference Newcomb1886, p. 606).

Within the conflict between natural rights and legal positivism, the strand of property as entitlement centred around the conception of distributive justice, led Jeremy Bentham and William Blackstone, in their own different ways to map out the features of a just distribution as good things. As D. G. Long, succinctly puts it, for Bentham, property was the offspring of desire, as basic to man as the exercise of his own will (Long, Reference Long, Parel and Flanagan1979). It is this powerful and purposeful nature of desire, the offspring of property, along with other human feelings—pleasure, security, and expectation, that define property rights. The element of expectation has never been resonated with the earlier philosophers as it did with Bentham. He makes a succinct point on human nature and says that, “Expectation is the basis of every proprietary right: it is this which affords whatever occasion there can be for giving a thing to one man rather than another” (Long, Reference Long, Parel and Flanagan1979, p. 226). Quoting Bentham, Long suggests that in defending expectation as basis for property rights, “Inequality is the natural condition of mankind,” and hence Bentham seems to defend inequality as natural (Long, Reference Long, Parel and Flanagan1979, p. 226). In this state of inequality, there is bound to be subjection of one by another. Bentham argues that “Subjection… is the natural and unavoidable state of at least two-thirds of the species, and if it were possible that anything like independence could subsist among any part of it, it could only be among the remaining third” (Long, Reference Long, Parel and Flanagan1979, p. 226). This anthropocentric approach of desire, pleasure, security, and expectations formed the foundation of market society that was to gain momentum in the coming years. In spite of a candid recognition of human attributes of property, Bentham fails to appreciate the complex social relations that property creates that determine the contours of property.

Douglas Long notes that Bentham’s theory of property disappoints, in spite of his efforts to assemble the methodological raw materials for a full study of distributive justice as the essential prerequisite for human development. It falls short of a genuine development in favour of mere amelioration, failing to foresee a social change (Wolin, Reference Wolin1960, p. 293).Footnote ¹⁵ The insatiable desire and incorrigible uneasiness, not creativity or self-expression, provides the spur to the very pursuit of happiness that Bentham finds in property. On the other hand, Rawls effectively supersedes Bentham by suggesting a human moral sense as the basis of a system of distributive justice that evolves spontaneously with the socio-political and legal systems.

At the same time, Karl Marx, advocating a different approach to human development, also focuses on human actions in his critique of capitalism as a socio-economic system. Marx takes the vantage of human life as a social process with a capacity to transform society and nature. Property for Marx, means no more than a human being’s relation to his natural conditions of production as belonging to him (Marx, Reference Marx1973, p. 491). In his exposition, Marx relates between individual and society and between individual and nature as mediated by the mode of people’s appropriation of nature, where the objects of nature with which he produces are “natural presuppositions of his self, as an extension of his own being” (Marx, Reference Marx1973, p. 491). As E. K. Hunt notes, for Karl Marx, property is always a social relation that connects individual with nature and society (Hunt, Reference Hunt, Parel and Flanagan1979) forming the basis of reproduction. This process of reproduction is a natural and social process with reciprocally interrelated aspects that has been destabilised by capitalism as a self-regulating market economy and what Karl Polanyi refers to as an economic system disembedded (Polanyi, Reference Polanyi1944; Gregory, Reference Gregory1923) from people’s social relations, alienating society from the environment as a natural context to human activity. For Marx, what was important is the social nature of human means to fulfil his needs. Like hunger that is satisfied by material substances, there are social needs that may not relate with materiality. Psychological and spiritual needs that get developed into conscious desires, do so, only in a social context. Hence, the means of satisfying these needs are social, elevating the individual faculties and consciousness (Marx and Engels, Reference Marx and Engels1932, pp. 301–302). For Marx, production basically also meant consumption, and he observes, “The individual who develops his faculties in production, is also expending them, consuming them in the act of production, just as procreation is in its way a consumption of vital powers” (Marx, Reference Marx and David1968, p. 32). Further, for Marx, the life activities of both production and consumption are reciprocally interconnected, and both are involved in human self-creation with nature acting as man’s inorganic body which makes human activities possible.

The distribution of resources is determined by property rights and social relations of production, and as such is an integral part of the production process. As Marx suggests, capitalism appears to make it separate as the production is undertaken for exchange where commodities and money are constantly circulating through the process of exchange (Marx, Reference Marx and David1968, pp. 37–38). Capitalism as a system of exchange, distorts the real nature of human wealth and human existence, and further by commodifying human productive activity itself, as a commodity subjected to market exchange, sets capitalism as a distinct system from a simple commodity producing society (Marx, Reference Marx1961, pp. 168–169).

As we have seen, a distinctive theme of western political thought is that the political obligation is based on the justification of consent of the governed where primacy were given to the individual and his rights as a guarantee of protection against any form of tyranny. The obligations also arise from the contingency of social relations that develops from family, religion, and community, but seems to be limited by the narrative of rights in its shift from Greek conception of property to the classical theorists and their placing of property in the wider scheme of political philosophy. However, the social relations generate their own conflicting collective obligations between the different roles that individuals play in a given society. These conflicts may not be resolved from the point of view of any particular role, but to make sense of they need a moral anchor in the wider scheme of political obligations. As Lon Fuller observes that law cannot be what the positivists think it is, for how could there be “an amoral datum called law, which has the peculiar quality of creating a moral duty to obey it?” (Fuller, Reference Fuller1958, p. 630).

4. Socialising property

Property as a concept cannot be limited by its ability to manage human interaction. It also requires to address a social challenge that draws our attention to the norms, values, and ways of life that a society embraces. Beyond the social interaction, property also needs to determine the character of that interaction, and it rests on value choices. As a free and democratic society that demands equal treatment for all with equal concern and respect, our interpretation of fundamental values also defines property and determines the contours of obligations that it creates along with our moral and ethical standards.

The ability of property rights to exclude others and impose their will on the many also may create a significant challenge when it has the capacity to veto the power and arguably violates democratic norms by giving despotic power over the community to a single individual. Having ownership of the only drinking water source in the community creates an obligation on the owner rather than what otherwise the right-based approach would argue. Determining what obligations owners have, demands attention to the norms and values of a democratic society. Property through ages was evolved to accommodate freedom, opportunity, security, and wealth, but it is also designed to prevent owners from inflicting harm on others and from acting in a manner that is incompatible with norms of propriety.

Under the Roman and early Roman period, the moralists viewed property as an accessory that should not come between human and his mind. As stoics say, a good man can be happy even on the rack. Susan Tregiarri argues that earlier Roman philosophers were concerned with what wealth, worldly possessions, and property would do to the possessor; they were concerned with attachments and emotions towards things one owns, rather than acquisitiveness (Tregiarri, Reference Tregiarri, Parel and Flanagan1979). As the contemporary scholar Michael Sandel would argue that when certain things that we may identify as property, and is subjected to the market, it corrupts the individual and the very object. Hence, certain objects or relations identified as property have a moral and ethical value beyond the demands of the market, the corrosive effect of the market can only be analysed from an ethical perspective. When one relates oneself with goods that they possess, they tend to forget the moral goodness that enables the individual to do things beyond market compulsions. Thereby, the philosophical moral dictum that one must own things rather than allowing things to own one appears meaningful.

Property like land provides a proper occupation for a free citizen, giving him independence and free time to exercise his faculties and also to contribute to the larger good as citizens (Tregiarri, Reference Tregiarri, Parel and Flanagan1979, p. 55). This approach to ownership of land stands quite opposite to what land entails, as an investment. But later, the vision of law became less hostile towards trade profit and accumulation when property was defined in terms of law to include transferring, exchanging, and conveying possessions and rights related thereto (Pocock, Reference Pocock, Parel and Flanagan1979, p. 142).

As Bentham later suggests, property is essentially an external relationship, in reference to a relation or to the object, as indicated by the modern view of property as a set of relations. Hence, it is a right or a thing but not in his own person (Long, Reference Long, Parel and Flanagan1979, p. 235). It is this view of property as a physical object susceptible to human use or acquisition that turns property from philosophical materialism to materialism. For Bentham, an individual’s reputation or liberty was subsumed in his articulation of property where property was a relationship involving an actor and an external object. As Douglas Long notes that “Bentham considered it a mistake to regard one’s own livelihood or skills as one’s property—though they could be someone else’s” (Long, Reference Long, Parel and Flanagan1979, p. 237). As Long further observes, “As such, a relatively inclusive notion of subjection is thus preferred to a relatively egalitarian notion of exchange” (Long, Reference Long, Parel and Flanagan1979, p. 237). Can we infer that it was Bentham’s failure to see the moral entitlement within the scheme of legal entitlement to real property?

In contrast to the ancient times, modern jurisprudence and its broader conception of justice were concerned with men and things rather than the relations between men as political actors or social being with the individual’s consciousness of living as a moralistic human. Even what entails political relation was strictly construed as a system of relation between authorities and subjects which was necessarily a life lived under law. As John Pocock notes, “this transition from ancient to modern led to the escape from many if not all traditional moral restraints, legitimised by increasingly complex and dynamic relationships and processes that we call “economics,” eclipsing the political relationships among people and the swallowing up of ancient polis (Pocock, Reference Pocock, Parel and Flanagan1979, p. 143). This transition had a significant bearing on human agency and autonomy that now came to be dictated by the state with the authority of law.

As the foundation of any theory of distributive justice, a theory of property also needs to take into account the moral facets of entitlements where the dimensions of entitlements needs to be determined by the recognition of actual and potential human attributes. The attributes as Aristotle suggests are the product of complex social organisations that requires, the polis that exists by nature (Aristotle, Reference Barker1982). As Aristotle suggests, the ultimate end of a good human life is happiness (eudaimonia) or flourishing constituted by numerous plural and incommensurable goods that a polis grants, and by virtue of our capacity to use reason, helps us develop and deliberate on our everyday actions. Hence, well-being, “consists in the skilful deployment of our capacity to give and respond to reasons…” (Kraut, Reference Kraut2002, p. 85). Gandhi coined this mastery over our mind and our passions, as Swaraj or self-rule in line with the Socratic use of the Delphic Maxim, “know thyself.” Gandhi was pointing out to the Socratic ethics of self-examination. The Gandhian moral philosophy hence connects between political self-rule and ethical self-transformation that binds individuals. Gandhi contextualises property rights within this wider social and political obligations. His notion of trusteeship creates a framework for us to reimagine property through the lens of obligations.

5. Trusteeship: Towards a Gandhian theory of property

As a political exemplar, Gandhi realised that any system that is conceived, demands a complex fabric of conceptual and institutional requirements. Any legitimacy to such a system requires it to be ethical and universal. Gandhi centred his approach to property around obligations that take into account the rights of “the other” and create an institutional system that facilitates reciprocity, plurality, non-violence, and inclusivity. His conception of trusteeship—to consider private property as held by the owner for the larger benefits of the society, provides for an institutional structure where the ownership is legitimised by the usefulness of its possession for the larger benefit of the society. It is non-violent as it is voluntary and without any compulsion, as the owner is given the freedom through his ownership to create a platform to channelise social commitments. It enables the owner the freedom to choose and decide as ethically as one can, to make choices without compulsion, political force, or legal violence. Any transaction such as this creates social and economic relations that enable reciprocity among such participants, and it brings a level playing field among people, as every individual with a different set of property rights can interact. This also enables the interaction of capital and labour without one dominating the other.

Hence, any institutional structure, whether it is a corporation, cooperatives, or individual enterprise can adopt trusteeship, fostering values that are pluralistic and ethical. It can promote and advance the individual and societal interests, and can enable autonomy and yet provide opportunity for “the other” when the owner takes into account obligations and enables the societal interests.

Property helps reorganise a political landscape. Gandhi recognised the need to address the deep political, social, and economic divides that are entangled and interconnected, as any approach would need a moral anchor that would appeal to either end of the spectrum. Gandhi’s view of democracy, “is that under it the weakest should have the same opportunity as the strongest. That can never happen except through non-violence” (Kriplani, Reference Kriplani1960, p. 177). It is the application of truth and non-violence, Gandhi’s two non-negotiable values, that is reflected in trusteeship. Gandhi argues that though private possession is incompatible with non-violence, one will have to make concessions to those who earn money but would not voluntarily use their earnings for the benefit of humanity (Gandhi, Reference Gandhi1960, p. 22). Similarly, the state is a soulless machine that also instrumentalises violence in a concentrated and organised form capable of suppressing private property if state ownership is legitimised (Gandhi, Reference Gandhi1960).

Gandhi understood that when compromises are required on conflicting positions, it should not be based on core principles which are non-negotiable, that is, it should be accommodative of truth and non-violence. Gandhi required a political solution to the economic divide where a highly uneven distribution of property in a country like India, that is labour-intensified than capital, reflects deep inequality. To take along people together from different social, economic, and political backgrounds, it can only be done through principles that would appeal to all without exception. It is in this context of socialists’ ideas vis-a-vis the prominent western economic philosophy, that Gandhi envisions a system, a via media, that gives hope to the underprivileged and marginalised, by making them a participant and party within a highly private property-orientated society. In eliminating violence and force towards the privileged to forego their property that could sow the seeds of hatred and would bind the society in a vicious circle of hatred and violence,Footnote ¹⁶ Gandhi attempts to foster a peaceful transition of benefits to the needy in legitimising legal structures like cooperatives where obligations takes the centre stage in enabling property rights. As a moralist, Gandhi’s approach to property can also been seen as an alternative vision to the utilitarian philosophy and materialistic scopes of modernity.

Gandhi states that “I must know that all that wealth does not belong to me; what belongs to me is the right to an honourable livelihood, no better than that enjoyed by millions of others” (Gandhi, Reference Gandhi1960, p. 5). Similar to Locke and Aquinas, he says that whoever appropriates more than the minimum that is really necessary for his, is guilty of theft, more so when our possession deprives others of their dignified life. But Gandhi, goes beyond what Locke says, and suggests that “it is also theft to use a thing for a purpose different from the one intended by the lender or to use it for a period longer than that which has been fixed with him” (Gandhi, Reference Gandhi1960). When property scholars suggest that private property is not a grant of absolute control and yet fails to limit the power and the control of private individuals. Gandhi’s suggestion reflects the profound truth that God never creates more than what is strictly needed for the moment, and hence to desire control and power as property rights goes, is against the very spirit of human existence and its temporality. It is in this sense, that Gandhi sees rights as secondary and his vision of trusteeship, as an abstract ideal that helps navigate the terrain of obligations (Gandhi, Reference Gandhi and Hingorani1970, p. 100; Terchek, Reference Terchek1992, p. 454). As for Gandhi, both public and private ownership of assets was valid; it is only the affirmative obligations that private individuals owe to the society that validate private ownership (Gandhi, Reference Gandhi and Hingorani1970, pp. 102–103).

The real change that would bridge the deep chasms of the society can only be achieved “by outgrowing the greed and sense of possession” (Gandhi, Reference Gandhi1960, p. 5), and hence taking away property from the landlords or handing it over to the poor would not bring a sustainable solution. These changes for Gandhi are embedded in violence, creating resentfulness and a sense of injustice, forming a cycle of further violence. For Gandhi, the society should cultivate the obligation and duty, the responsibility of the wealthy to “come down in spite of their wealth to the level of those who earn their bread by labour” (Gandhi, Reference Gandhi1960). Inequality, before it is erased through redistribution of assets should be erased in the minds and to do so is to realise the potential of socialising property. Socialising property enables voluntary transformation that can avoid conflict, and hence is sustainable and peaceful. The rich and the poor bared down to individuals, transient, temporary beings, and part of the nature, relating to each other as living beings is the measure of Gandhi, rather than what is visible in his possession, clothes, wealth, gender, race, or skin colour. For Gandhi, his theory of trusteeship is a matter of conviction as Gandhi himself points out that “how many can be real trustees according to this definition is beside the point. If the theory is true, it is immaterial whether many live up to it or only one man lives up to it” (Gandhi, Reference Gandhi1960, p. 4) What is important is to strive to live up to it, no matter whether you succeed or fail.

Though Gandhi envisioned a statutory and institutionalised system of trusteeship, that change was to be cultivated from the grassroots and not from above. The freedom to choose and decide should be that of the holder and it cannot be forced upon by legal system, but should be voluntary for it to succeed. A choice would have to be made by the people themselves between the class war and voluntarily converting themselves into trustees of their wealth. Such a change coming from the people themselves would be non-violent, voluntary, and truthful. It was Gandhi’s scepticism about law as a tool to bring real change to human behaviour and the violent nature of those changes, if implemented by authority, led Gandhi to believe that real change to humanity should come from within the individuals themselves. Gandhi’s approach is not to undermine the authority of law, but to show us the capability of the legal structures and the institutional frameworks in assimilating the pluralistic and altruistic system of property where obligations lead rights. Changes in external manifestation can be brought about by the law, but to enjoy the wealth by renouncing it is a matter of individual conviction where the contested moral terrain of law may not be helpful.

Gandhi was critical of the trajectory of modern economics and he, reflecting upon Ruskin, believed that “Among the delusions which at different periods have afflicted mankind, perhaps the greatest-certainly the least creditable- is modern economics based on the idea that an advantageous code of action may be determined irrespectively of the influence of social affection” (Gandhi, Reference Gandhi1956, p. 3). Ruskin says,

Tom Settle captures the essence of what it means to own property when he says:

Though Gandhi visualised trusteeship as an abstract ideal, he also found ways in which his abstract thoughts were practiced. Elsewhere I have argued (Prabhu, Reference Prabhu and Amarjeet Singh2022, p. 225–26) that within an antitrust framework in the governance of economy, non-economic goals play an important role, and at times the courts have engaged with the idea of trusteeship in deciding cases where duties and obligations were cast on dominant firms to protect the weaker and smaller firms. The legal obligations of a firm are at times akin to a trustee who needs to exercise the freedom of trade with the realisation that its existence is dependent upon the obligations towards the society. It is through property institutions and relations that realisation and extension of such obligations and rights are made possible. Gandhi, hence, during his lifetime promoted cooperatives where the legal structure is embedded in democracy, decentralisation, and inclusivity. Akin to Rawls, Gandhi argued for a property owning democracy and saw cooperatives as an ideal structure that reflects the system of property owning democracy. Cooperatives greatly reduce the hierarchical, adversarial, and conflictive relationship within companies, whereas cooperatives could positively impact on social and political aspirations and values of the society. Cooperative structure as an instrument of change carries with it human interaction and relations that is also sought by property institutions in its socialising nature (Prabhu Reference Prabhu2018, p. 98). I have further argued that similar to Rawls, property owning democracy disperse the ownership of wealth and capital, not by the redistribution of wealth, but rather by ensuring the widespread ownership of productive assets and human capital (Prabhu, Reference Prabhu and Amarjeet Singh2022, p. 229). Cooperatives as a property owning democracy allows enterprise to commit to the voluntary nature of participation, reflecting the Rawlsian concept of fairness, signifying reciprocity (Freeman, Reference Freeman1999, p. 59). Democratic values also help build robust institutions, fostering social, political, and cultural values, where institutions like cooperatives create complex sets of relations reflecting property rights and obligations that determine public and private interests (Prabhu, Reference Prabhu and Amarjeet Singh2022, p. 228).

Apart from institutional structure, Gandhi saw immense possibilities in how individuals could frame property relations within the legal frameworks. Gandhi in engaging with the copyright regime and through his conflicting journey realises the potential of individual autonomy. Gandhi who was initially apprehensive about the copyright regime, later in his life engages with copyright on his own terms. He does so as an author, publisher, and editor by understanding that copyright as a bundle of rights that can be instrumental in providing benefits to the public, while if needed could abandon those rights within the bundle that are utilitarian and rights-protective of private entitlements. Gandhi’s engagement with copyright reflects his philosophical opposition to market-orientated utilitarianism. Yet, at a later point of time, Gandhi engaged with copyright in a conditional and qualified manner, by adopting the specific rights out of the bundle of copyrights, that facilitates public benefits. As a trustee to his copyright, Gandhi held rights and intervened only to a limited manner by keeping the right of translation and the rest in public domain. After translation, the outcome of work is again released to public domain without benefit to the author. As Shyamkrishna Balganesh suggests, Gandhi’s qualified acceptance of private property though translated into an opposition to the institution of copyright, but his engagement with copyright reflected the application of trusteeship with the institution of private property (Balganesh, Reference Balganesh2013).Footnote ¹⁷

In engaging with institutions at the policy level and individual actions through choices, Gandhi’s approach was based on morality. Gandhi’s moral approach to commodification of every aspect of human life, from consumption to commerce for profit alone, to disruptive political and social decisions led Gandhi to critique modern institutions and practices of free market society. Morally, Gandhi’s approach led him to argue that trust, altruism, and identity would promote a culture of economic transaction that could challenge the premise that selfishness is natural. Instead, Gandhi sought to create relations based on trust that fosters human values, as he calls it as “service economy” (Kumarappa, Reference Kumarappa1948, p. 7). In drawing upon and pointing out the similarity in Rawls conception of Property Owning Democracy and his principles of justice, I argue that Gandhi’s idea on trusteeship has a wider application and relevance.

Unlike John Rawls, Gandhi was not a liberal, and Akeel Bilgrami points out that Gandhi’s notion of liberalism was at best closely related to a version of “positive liberty” of Isiah Berlin, where the individual is committed to freedom as a method of self-realisation through one’s self or identity (Bilgrami, Reference Bilgrami2018, p. 9). Bilgrami further states that Gandhi version is a form of emancipation through an overcoming of alienation from oneself and others in a social formation necessitated by the ill effects of modernity. He sought to overcome it not through any socialist revolution but by a sense of practical engagement arising out of a moral work ethic in an unselfconsciously cooperative ethos. For Gandhi, liberalism does not reflect the chronic tension that compels one to choose between equality and liberty, but rather chooses to focus on the central goal of un-alienated life, as the central goal of politics. Bilgrami opines that when the notion of liberty, situated in a more fundamental ideal of un-alienated life is plausibly described as the construction of an ideal of positive liberty. It is this positive liberty that Gandhi pursues as a moral exemplar. Whereas John Rawls pursues an overarching goal to provide a contractualist method for each individual in a society to choose a principle to live by, which, if followed, one could not possibly arrive at a social contract with principles that were biased in one’s own favour. Gandhi avoids the bias by bringing in the moral anchor that demands individual to consider the “weakest among the other,” and this is where the larger scheme of John Rawls and Gandhi converge, in spite of their differences. The convergence is more visible and striking in the second principle to his theory of justice espoused by Rawls and Gandhi’s talisman that he proposes. An attempt is made to contextualise the philosophical approach of Rawls and Gandhi in the following section.

6. Property within social justice: Between Gandhi and Rawls

Rawls’s criticism of utilitarianism led to his proposal suggesting a system of social justice. Rawls points out that the primary object of the principles of social justice is to understand the basic structure of society, the arrangement of social institutions into one scheme of cooperation (Rawls, Reference Rawls1971, p. 54). It is also an arrangement of rights and duties through institutions like property and markets among others that determine the appropriate distribution of the benefits and burdens. In distributing the social and economic advantages, the principles advanced by Rawls presuppose the social structure based on equal liberties of citizenship and; secondly, that of social and economic inequalities. The basic liberties are also inclusive of the right to hold property (Rawls, Reference Rawls1971, p. 61) though this wealth and income may not be distributed in equal measures, but it must be to everyone’s advantage. Such distribution of wealth and authority should also be consistent with equal citizenship and equal opportunity. The two principles advanced and applied to institutions are on the basis of the rights and duties as defined by public rules creating basic structure. For Rawls, justice is prior to efficiency and is dependent on the maximisation of expectations of the least favoured and most disadvantaged. In justice as fairness, society is interpreted as a cooperative venture for mutual advantage (Rawls, Reference Rawls1971, p. 84). Rawls points out that any framework that governs institutions requires a social order of equal liberty and fair equality of opportunity. Hence, under the difference principle, the higher expectations of those better situated are just if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society (Rawls, Reference Rawls1971, p. 75).

As discussed earlier, the holdings and higher expectation of the better off is justified if it provides advantage to the least advantaged ones. As Gandhi’s approach to copyright suggests, if any institution enables the least advantaged by the individual acting as trustee for the public benefit, then such institutions create legitimacy. Societal institutions and framework like copyright thus give expressions to individual freedom and independence where individuals could develop the capacity by expanding justice as relational. Hence, an aspect of what is justice is also an individual pursuit creating norms facilitating equality and reciprocity. There cannot be a centralised agency that would administer justice devoid of the individual. It is the individual’s decision, his action reflected by a conscious and constant process of decision-making that determines the contours of justice. In this sense, individuals should facilitate just distributive social institutions and should advance a set of norms and values where the social structures could be sustained by equitable relationships and personal virtues (Gandhi, Reference Gandhi1950). As John Rawls suggests, in his conception of justice as fairness, justice goes beyond the requirements of customary or formal law for an equitable exchange where the free and rational persons further their interests by accepting an initial position of equality that defines the fundamental terms of their association (Galisanka, Reference Galisanka2019). For Gandhi, these fundamental terms are non-violence and truth. Any notion of justice should entail non-violence and truth, both a common ground for agreement and consensus between two opposite poles.

Before John Rawls introduced his thesis through his seminal work, a similar abstract thought experiment was suggested by Gandhi. He states,

Gandhi’s talisman or thought experiment reflects the important aspects of his vision. He seems to declare that it is through our fellow beings that we find meaning to our life. It is our social, economic, and political commitments that define us. Any policy decision or individual decision should be made keeping in focus the weakest and the marginalised, people on the periphery, and the neglected groups of the society. Any action taken, keeping in mind “the other” makes the individual mindful and considerate not just about the larger society, but the consequence of one’s decision and its relation to people. It helps to take into account the relational value of one’s life. Like Gandhi, Rawls points out that his conception of justice is not metaphysical but political, and should be seen within the realm of democratic society (Rawls, Reference Rawls1985). Gandhi unlike Rawls, avoids the criticism of expecting too much out of the individual in his original position under the veil of ignorance, but situates the individual within the social and political context of everyday life with biases and individual perspective, with possibilities to unlearn and define one’s life through lived experiences. It is the self-reflection and moral anchorage that help the individual to navigate the biases and demand a conscious and thoughtful life. Such individual could self-author his life through its tests and tribulations. His engagement and experiments with the world around him through the complex relations and norms facilitates human flourishing.

Similar to Sartre’s existentialist notion that the measure of freedom in a society is that of its least free member and to that of Rawls’s difference principle, which depends on the production of the margin of benefits for the least fortunate to justify the overall distribution of social goods, Gandhi before these scholars stressed this vantage point of governance. When Gandhi keeps the least fortunate at the centre of the decision-making process, as an exemplar, engages with the realistic world, he creates a framework where an individual is nudged to think beyond himself formulating norms and conventions. Such actions also create consensus where any like-minded individual will reciprocate, giving individuals their agency. Gandhi’s thought experiment in this regard avoids the trap of philosophical abstractness and perpetual conflicts. Gandhi engages the individual in an original position that is realistic and worldly, nudging him to bring the better out of his personal attributes to navigate through the biases and contradictions. It is in our realisation of commitment and obligations towards fellow beings and in relating to our surroundings that one finds meaning to life. It is in this context, property becomes meaningful as it becomes the means rather than an end. As Socrates, Gandhi wanted individuals to think for themselves and to consciously think of their individual actions in terms of their effect on the poorest of the society. Our actions need to be guided by our convictions. Hence, the measure of life and individual actions finds its legitimacy by the positive impact on the weakest and the vulnerable and in making our surroundings better. For Gandhi, this thought experiment to keep oneself in a position of compulsion, to act based on the belief and good faith, calls for an ethical engagement. Developing such norms contextualises life and property as a means, rather than an end in itself in this transient world.

Such an approach strengthens democratic values, its institutions, and cultivates norms that are inclusive and yet accommodative of pluralistic values. It decentralises power and gives individuals the freedom that will help them to find their own path to a better life through their own actions, developing their autonomy and agency. In a world with finite resources and growing conflicts, we need to keep obligations at the centre of the property debate rather than a right-based approach. It eventually would help the society to avoid cyclic conflicts and hopelessness among the marginalised and would bring legitimacy and faith in the democratic institutions that would create an inclusive social and political system.