THE EVOLUTION AND PHILOSOPHY OF PROPERTY.
By JOHN LURYE, LL.M., Barrister-at-Law.
Based on part of the Valedictory Address on " Some Sociological Aspects of Property"
delivered by the President of the Law Students' Society in 1946_
I propose to deal with this subject in two parts. Firstly, I shall
undertake a short introductory survey of the evolution of the concept
of property so that the theories of the various schools of thought on this
subject can be viewed in their proper perspective. Secondly, I shall
attempt a discussion of the salient features of some of the more important
philosophies by which sociologists and lawyers have sought to present a
rational account ofthe concept of property as a social and legal institution.
THE EVOLUTION OF PRIvATE PROPERTY.
In the twilight of history, during the phase of the primitive hunters,
the concept of property has as yet little significance, for the political
control or sovereignty exercised by a particular group of families over a
particular area is not yet differentiated from the communal right of
property rendered necessary by the needs of the inhabitants. The right
of property here merely takes the form of a right of the particular individuals constituting the group to hunt for and appropriate objects necessary
for subsistence within a defined area. In this era anthropologists have
shown that in some cases there is neither Individual nor Communal
Ownership of land but rather an "acquisition by birth" whereby an
individual who was born into a tribe in a certain area had the right to
hunt in such area. Hobhouse points out that this practice seems to have
been prevalent among the coastal tribes of New South Wales. As yet
there is only private ownership in such articles of clothing and weapons
as each member of the tribe carries.
The notion of private ownership as regards land only commences
to assert itself with the approach of the agricultural phases. Small strips
of land are cleared from the waste by certain individuals, aided perhaps
by their families. These strips are tilled and cultivated so that a temporary possessory right inheres in each plotholder. But as soon as a
particular plot of land becomes exhausted the tiller and his family carve
out a fresh strip from the common waste and the other plot reverts to the
waste or common. The significant feature of this process is that there is,
100E\ely speaking, a temporary private ownership but a permanent common
ownership.
In time the problem of the exhaustion of the tilled land is gradually·
overcome by the adoption of the two or three-field system of cultivation.
With the coming of this system it is no longer necessary for the individual
to roam over the countryside searching for good agricultural land. His
connection with a particular plot of ground becomes more rooted, and
thus we see a mere natural possession in process of crystallizing into
permanent ownership.
But so long as the kindred remains the core of communal organisation
there remains strong communal control. For example, there are restrictions in regard to alienation, acquisition by fresh clearing of the waste,
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and the rights and duties of each plotholder are defined by custom. In
fact attempts are even made to maintain the partnership of families by a
system of periodical redistributions when the holdings become unequal
and unsuited to the organisation of the kindred.
The growth of the manor in England is traced by Vinogradoff in his
famous book, and from the point of view of the concept of property I
have already indicated its salient features. It now remains for us to see
how this system was destroyed by the gradual break-up of the kindred
living together in Communistic fashion, though recognizing limited
possessory rights in the land by individuals. The seeds of the break-up
of the kindred lay chiefly in its own expansion. As the waste was carved
up more and more, and as the communal interest demanded that the
common be preserved for pastoral purposes and for grazing of the beasts of
burden used on the agricultural holdings, landlessness resulted for some.
This leads to war with neighbouring kindreds, with its attendant military
preparation and organization culminating in feudalism. This process,
whereby numerous landless individuals and others come under the protection of a powerful thegn or chieftain had been going on in England for
several centuries before the Norman Conquest. Slowly but surely this
resulted in a depression of the status of the free village community.
The freeman had now become a mere serf bound to perform certain
menial services for his lord from whom he held his tenement. Feudalism
is thus not merely a political system. It is also a new proprietary system
based on the needs of a society organised economically for war. There
is a division of labour whereby services are apportioned in exchange for
tenures of varying quality.
The period of feudalism, even in its imperfect form, comes to an end
with the break-up of the manor. The serfs are thus emancipated, but the
end of villeinage in England merely converts them into a landless proletariat of agricultural labourers. The close of the Middle Ages sees the
emergence of the capitalist farmer, owning his stock but renting land.
Later, with the discovery of the New World and the consequent development of commerce, the economic face of Western Europe begins to change
radically.
The history of the 16th, 17th and 18th centuries is one of conflict
between the great maritime powers culminating in the establishment of
British hegemony on the seven seas and the colonization of a very substantial Empire. The resulting wealth, stimulated by industrial developments of the early 19th century, brings England to the peak of its
economic development. This is the era of laissez-faire, of radical individualism and the prevailing notion is that property is an instrument of
personality. The fundamental postulate of theorists like John Locke
and his successors is that some systematic apportionment of the instruments of production and of the fruits of industry is necessary for the
regular working of the economic order. However, we find that in the
course of the 19th century and even in the 20th there is no real apportionment of the instruments of production and of the fruits of industry, and
that property of the kind and amount required for the fullest expression
of the individual personality is not generally accessible to all citizens.
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I now come to consider .some of the salient features of the concept
of property as viewed by the various schools of jurisprudence. And first
I consider:
THE OCCUPATION THEORIES OF PROPERTY. The Roman jurists took
the view that title to property arose from "natural acquisition" by Occupatio
or Specificatio (manufacture or creation). This theory is really based on
the notion that the abstract nature of things is such that, if external
objects are discovered, controlled and applied to specific desired purposes
of an individual, title in such external objects naturally inheres in the
individual. This deduction from the abstract nature of things, in later
times, becomes an important argument of the Natural Law School in
explaining the concept of property. The Roman jurists of the Classical
Period, however, found great difficulty in determining title as between
the maker of an article and the owner of the materials. And so we find
the Proculians awarding the thing made to the maker because as such
it had not existed previously and the Sabinians awarding it to the owner
of the materials because without such materials the final product could
not possibly have been made. In addition to "natural acquisition"
the Romans also conceived the principle of " civil acquisition" whereby
an individual might acquire title to property under the prevailing social,
economic or legal system by way. of an inter vivos or testamentary
transaction. In certain material objects-res extra commercium-there
could be no property. Such objects were:
(1) Res Communes which, from their very nature, were such that
they could only be used by all members of the community
and not owned.
(2) Res Publicae, too, were such objects as had been dedicated to
use and not individual ownership by public functionaries and
politicians.
(3) Finally there were objects which have been variously described •
as Res Religiosae, Res Sacrae or Res Sanctae. These objects
had been devoted to religious purposes and were incapable of
individual ownership.
It is clear, therefore, that the Romans recognized limitations to the
natural occupation theories which seem to have been developed in the
light of the existing social and economic structure of Roman society. It was
clearly recognized that some things which had been naturally or civilly
acquired by the familia were capable of private ownership. Other things,
not so acquired and being of their very nature such as could be controlled
only by the state for political or military or religious purposes, were
excluded by the jurists from the occupation theories.
THE NATURAL LAW SCHOOL.
The natural law theories were continued and developed during the
16th and 17th centuries. Some proceeded upon the basis of a fictitious
social contract, others made certain deductions from the abstract nature
of man, still others considered property from the point of view of man as
an economic entity. Grotius and Pufendorf are substantially in agreement in their views concerning the origin of private property. Grotius
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points out that originally all things were res nullius; that the community
then agreed to divide material goods between individuals, and that goods
subsequently discovered became the property of the discoverer who had
reduced them to his control. Finally, it was inferred from the nature of
the control exercised over things that private ownership involved the
right of disposition. So that one could acquire property in three ways:
(1) By participation in the agreement by which men in society
arrived at a division.
(2) Secondly, by discovery and acquisition.
(3) Thirdly, by lawful acquisition from any individual who had
exercised his natural right of disposition.
From what I have said it is thus clear that Grotius and Pufendorf have
combined the occupation theory with the notion of a social contract.
But the theory of property expounded by Grotius seems to have been
largely influenced, as Dean Pound observes, by the current views on
international law in relationship to the acquisition of territories in the
New World by the European nations. What Grotius sought to do was
to justify title to colonies by disc9very and acquisition. From this
premise of international law Grotius elaborated a general theory of property which is only compatible with the conditions and circumstances
of the 17th century.
As against the views of Grotius and Pufendorf we have, on the one
hand, Blackstone who refused to accept the social contract and was
content to justify private property by the occupation theory together
with the view that man as a rational creature seeks to control that which
he has occupied or acquired and that this temporary possession crystallizes, with the growth of civilization, into complete ownership. On the
other hand, John Locke maintained that property arose out of the right
to labour and to the fruits of that labour. That in which a man" mixed
his labour" became his own.
In recent years the revival of natural law has led it into economic
channels. Any justification or non-justification of private property has
been deduced from the economic nature of man; and the views expressed
vary from an assertion that private property is an indispensable element
in the economic life of the community to the belief that all private
property is an evil and that man's worldly goods, particularly the instruments producing such goods, should be held and directly controlled by
the state in trust for the community.
THE METAPHYSICAL SCHOOL.
The metaphysical theories of property were largely developed by
Kant and Hegel in the latter part of the 18th and in the early part ofthe
19th centuries. Kant arrives at his concept of property from the fundamental notion of the inviolability of the individual personality. Taking
that notion as a fundamental major premise Kant then proceeds to work
out, in connection with property, a system of external meum and tuum.
He has to fall back on the natural law theories in so far as he postulates
an original occupation. But, in its early stages, such occupation merely
involves a physical taking of possession together with an exercise by the
possessor of his individual will in relation to the external object. From
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185
this stage the concept of property is only arrived at when there is a
juridical recognition of the rights of the adverse possessor by organized
society. And Kant justifies such juridical recognition on the principle of
reconciling of individual wills. In this way a universal law will work out
a system of relationships between a number of individuals and a number
of external objects. Kant's system of external meum and teum'is thus
complete. It should be observed, however, that Kant's evaluation of
property was moulded to some extent by his reactionary views upon the
French Revolution which had swept away the vested interests of the
French aristocracy. Kant was concerned with justifying the retention
of the system of private property, and in so doing developed his" will "
theory which paved the way for the rugged individualism of the 19th
century. One dominant feature is ignored in Kant's philosophical
exposition of property: the element of labour or manual or mental
creation is missing. To John Locke this element is all important, for he
recognizes that property is limited by use, and that property is inextricably
associated with the right to labour and to the fruits of that labour. Locke
might, logically, have reached the same radical conclusions as Karl Marx
did in his violent assault upon the institution of private property by means
of a similar, though more scientifically developed, labour theory of value.
But Locke's theories cannot be said to be anything but individualistic in
approach, for he justified inequality by a theory of agreement among
men and his views regarding property as being limited by use were
probably influenced by a special consideration of the example of the
New World where there was a superabundance ofland and raw materials.
To Hegel property is simply the realization of the idea of liberty. He
thus discards the notion of occupation. And in giving expression to this
idea of liberty Hegel speaks of the right of an individual to exercise or
direct his will upon an external object in such a manner as to imprint
indelibly his personality upon that external object and so claim it as his
own. In this way Hegel justifies inequality in wealth and says it is due
to accidents of external nature that give to what A has impressed with
his will greater value than to what B has impressed with his. Hegel, it
should be remembered, was writing in the early portion of the 19th century
when there were yet vast untapped resources both in the New World and
in other centres of European colonization. The philosophic expression
for the urge to exploit these resources thus took its form in Hegel's theory
that property was an essential instrument of human personality. It
seems, however, that this principle is hardly appropriate to the conditions
of modern society with its great inequality, particularly in periods of
economic crisis, and its emphasis upon property as a means of usurping
power rather than as providing a strictly utilitarian gratification.
THE HISTORICAL JURISTS.
In the middle and latter part of the 19th century the historical
school of jurists sought to justify the concept of property arrived at by
metaphysical and analytical jurists by tracing its historical development
and showing how individual ownership grew out of communal ownership.
In tracing the evolution of property the historical jurists have really
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verified the analysis of writers on analytical jurisprudence insofar as
three distinct phases are apparent:
(1) First, we have physical control being exercised over a particular
object. This the Romans have called natural possession.
We call it custody or the extra-legal and physical aspect of
possession: e.g. Squatter. The only protection an individual
may have in his holding is one based on preservation of the
peace. The law will protect his person against violence on
the part of any dispossessor, but there is as yet no jurisdical
recognition of the relationship between the individual and
the object of his occupation.
(2) In the next stage-that of juristic possession-there is a mental
element involved. The animus or intention to appropriate
for one's own purposes is added to the notion of custody, and,
in the result the law secures the relationship of the individual
to the object and ultimately will impute title or ownership in
such individual against all save the true owner.
(3) In the most developed phase-that of dominium or ownershipthe law goes further still. There is no need for actual.occupation or possession. The relationship between the individual
and the object is a purely juridical concept which secures to
such individual the highest rights of use and enjoyment without regard to the physical relationship between the individual
and the object.
The other main thesis of the historical school is concerned with the
development of individual property out of the primitive communal
property to which I have referred in the first part of this address. Three
chief causes can be advanced to explain this development:
(1) First, the break-up of the kindred as the basis of social organisation owing to its expansion and the consequent appearance
of an embryonic military feudalism.
(2) The growth of cultivation and the introduction of a two or
three-field system of rotation of crops leads to the identification of a particular plot of land with an individual occupying
and tilling it permanently.
(3) Thirdly, it is clear from a study of Roman law that some kinds
of property could be acquired by an individual even though
he was subjected to the control of his paterfamilias. Property
acquired as a result of military service or in the service of the
state was recognized legally as the private property of such
individual. Finally, it came to be the rule that any property
acquired by a son otherwise than through use of the patrimony
of the familia could be held by such son for his separate use
and enjoyment even though legally he was under the control
of his paterfamilias.
BIBLIOGRAPHY.
Pound: An lntroductim to The Philosophy of Law, Chapter V.
HolmeB: The Common Law, Chapter VI.
HobhouBe: Property, ed. by Gore.
Ely: Property and Contract in their Relation to the Distribution of Wealth.
NoyeB: The Institution oj Property.
Vinogradotf: The Growth of the Manor.