A peep into the philosophy of property

The word ‘property’ is a slightly evasive word. Absolute property in the sense of unlimited right of disposal hardly exists. A man, under our present laws, has no absolute property even in his own life; he is restrained from suicide and punished if he attempts to do it. In fact, it is a common mistake to speak of ‘property’ as an institution constantly remaining the same; whereas in reality it has assumed diverse forms, and is still susceptible of great and unforeseen modifications.  Let us examine the different systems which have been put forward in explanation of the origin and justice of property.  Roman jurists and most modern ones have considered occupancy of things without an owner, as the principal title conferring property. They start from the fundamental idea of a primitive community, ‘communio bonorum primaeva”, to avoid which, men tacitly agreed to renounce, each for himself, this undivided right over the common domain.  The older natural-law theories of property, of which Grotius and Pufendorf were the chief exponents, built up a complete system of natural rights of property upon a postulated original division by agreement or a subsequent discovery and occupation.  In order to explain why men abandoned the primitive community, the idea of a convention and contract is very often relied upon. But if we go back to the historic origin of property, we find no trace of such a contract. When we seek to derive a right from a fact, unless the reality of that fact is established, the right has no foundation.  Kant and other metaphysical theorists do not maintain that such consent is a historic fact, but speak of it as a juristic necessity. He answers the question by a metaphysical version of the occupation theory of the eighteenth century. He thinks that specification creates a provisional ownership, which only becomes final by the consent of all the members of society.  Property lies not only in physical possession but in intellectual possession, because the ‘mine’ by right is according to him so inherent in me that its use by another without my consent harms me even when I have not the physical possession of it.  Hegel gets rid of the idea of occupation by treating property as a realisation of the idea of liberty. Property he says, “makes objective my personal individual will.” A person must give to his freedom an external sphere, in order that he may reach the completeness implied in the idea. A person says Hegel has his external existence in property.  Property, says Miraglia, is the greatest right, the “plena potestas in re”. Man must attain his ultimate end, and therefore he expands his activity and binds and subjects to himself external things and makes agreements with other men for the reciprocal preservation of necessary and useful objects. From the expansion of his personal activity are derived property and personal rights. Fundamentally it is nothing more or less than freedom applied to things; it is the dress and investiture of individuals and is as inviolable as the person. Rosmini asserts that the common character of all property is due to the connection of an object with the personal principle. The connection is duplicate, both physical and moral.  According to utilitarians like Bentham property is nothing but a basis of expectation; the expectation of deriving certain advantages from a thing which are said to possess, in consequence of the relation in which we stand towards it.  While the positivists like Spencer base their theory of property on a deduction from a fundamental “law of equal freedom” verified by observation of the facts of primitive society, the historical jurists have maintained their theory on the basis of two propositions : (1) The conception of private property, like the conception of individual personality, has had slow but steady development from the beginnings of law (2) individual ownership has grown out of group rights just as individual interests of personality have been disentangled gradually from group interests.  Thus property, according to some sociologists, is primarily and essentially a group affair. While in its correlative and complementary aspect it is a power enjoyed by persons, and a function essential to the completion of personality, in its origin, its force, its continuance as property is chiefly on exercise of group energy.  But writers of different shades like Bosuet, Montesquieu, Mirabeau, Tronchet, Bentham, regard property as the creature of law. They merely speak of a state of fact. But unless every law is maintained to be just, we must admit law does not create right, but right must dictate the law.  Certain economists like Roscher, Mill and Seneuil think that without property there would be no stimulus to labour or saving. Wagner calls this system the economic theory of nature. The “natural-economical” theory has the great advantage that by basing property on general utility, it allows of successive improvements in existing institutions consonant with new wants and technical advances.  Those who regard property as a natural right derive their inspiration from Fichte’s excellent work on the French Revolution. “The transformation (bildung) of materials by our own efforts is the true juridical basis’ of property, and the only natural one.”  The same theory is explained more completely by Ahrens in his manual on natural law (“Naturrecht”). For every man property is a condition of his existence and development. It is based on the actual nature of man, and should therefore be regarded as an original, absolute right which is not the result of any outward act, such as occupation, labour or contract. The right springing directly from human nature, the title of being a man is sufficient to confer a right of property.  Although this natural right to property is absolute, their form is modified, because man, the subject of rights, changes. What is the best form of property at any given moment we can only learn from the study of man’s nature, of his wants and sentiments and the ordinary consequences of his acts. So long as men knew of no means of subsistence but the chase, pasturage or agriculture, this patrimony was a share in the soil, a part of the ‘allmend’. In the middle ages, in the towns, where industry was developed and organised, it was a place in the corporation with a share in the ownership of all that belonged to this community. The equalising movement, which agitates modern society so profoundly will probably end in obtaining new recognition of the natural right of property, and even a guarantee for its exercise, by means of institutions in harmony with the existing necessities of industry and the prescriptions of sovereign justice.  Renner’s main concern is to show how the legal institution of ownership, which was adequate and just in a society where property, work and use in the economic substrata coincided, came to fulfil an entirely different function in the capitalist age. In fact according to Renner ownership has ceased to be what it was. While remaining, in legal form, an institution of private law implying the total power of doing with the thing what one likes, it has in fact become an institution of public law, and its main functions are exercised by complementary legal institutions, developed from the law of obligations.  The law eventually takes account of this change of function by giving property an increasingly public law character. Renner asks socialists to abandon their passive attitude towards the law and to create the legal norm which adequately expresses the trend of social development.  Indeed, today there is a very clear sense abroad that the individual is not the end but the means; that he is only a wheel of a huge mechanism, the body social; and that his only reason to exist is the part which he performs in the labour of society. The individualistic system of property is vanishing because it was developed solely to protect the application of ‘wealth to individual interests, and therefore was useless in protecting its application to collective purposes.  Thus the individualistic system seems to be in open opposition to the temper of the modern conscience. In modern life, where a deep and well-defined consciousness of social inter-dependence has become dominant, liberty has been transformed into a duty of the individual to employ his physical, intellectual and moral forces to enrich this inter-dependence. In just the same way property has become for its possessor an objective duty or obligation to employ his wealth to support and enlarge social interdependence. Property is no longer a subjective right of the owner; it is the social function of the possessor of wealth. Indeed, functionless property, as Tawney points out, is the greatest enemy of the legitimate property itself. It is the parasite which kills the organism that produced it.  Hence the institution of private property should be emancipated from the moribund legal abstractions of the eighteenth century. It must cease to be a dead juridical entity and serve the needs of a progressive society without surrendering its economic or ethical value. The fact that property is primarily a social trust creates a constant need for correlating the laws that govern the right of property and the human values it is designed to serve. Â

Author Name: Dr Debiprasad Pal