Sunday, February 28, 2021

Theories of Property Rights



The theory that property exists as a natural right has had long and widespread acceptance. Many of the legal philosophers of Germany were expositors of this theory. As they expressed it the personal right of man, as determined by nature, is to possess a sphere of action sufficient to supply him with the means of support. This physical sphere should, therefore, be guaranteed to everyone, conditioned, however, upon his cultivating it by his own labor. Thus all should labor and all should also have wherewith to labor. The right to possession is a direct right, inalienable, antecedent to all law, and instituted for the general good. This theory is one application of the approach that all activity of the human race is the planned product of divine wisdom or of some unavoidable and immutable nature of things.


Laveleye in the twenty-seventh chapter of his book on Primitive Property (1878) gives the following exposition and refutation of four of the theories advanced concerning the origin of property.


Occupation Theory
Labour Theory
Social Contract
Anti Property Argument

''Roman jurists and most modern ones have considered occupancy of things without an owner as the principal title conferring property. Quod enim nullius est id, ratione naturali, occupanti conceditur, says the Digest. This theory can be easily maintained, so long as it only has to do with movables which can be actually seized and detained, like game taken in the chase, or goods found; but it encounters insurmountable difficulties when we attempt to apply it to the soil. In the first place, history shows that the earth is never regarded by men as res nullius. The hunting ground of hunting tribes, or the pastures of pastoral nations, are always recognized as the collective domain of the tribe; and this collective possession continues, even after agriculture has begun to fertilize the soil. Unoccupied land has therefore never been regarded as without an owner. Everywhere, in former times as in our own, it was considered as belonging to the commune or the State, so that there was no room, in former times any more than in our own, for acquisition by occupancy.

''Most of the partisans of this theory do allow a sort of primitive community, communion bororum primaeva. But they add, that in order to obtain individual ownership of things which they took possession of, all men tacitly agreed to renounce, each for himself, this undivided right over the common domain. If it is the historic origin of property, that they seek to explain in this way, history knows of no such agreement. If it is meant as a theoretical and logical origin, in this case they lapse into the theory of contract, which we shall examine further on.

''M. Thiers, in his work De la Propriete, borrows the idea of Cicero, who, comparing the world to a theatre, asserts that every one makes the place he occupies his own: Theatrum cum commune sit, recte tamen dici potest ejus eum locum quem quisque occupavit. The example goes against the theory which he is endeavouring to establish; for, in the first place, the spectator is only in possession of his place, and his possession merely gives him a temporary right and not the perpetual ownership; and, secondly, he occupies but one place. Hence no one could at best make his own more than the portion of the soil which he actually retains and can cultivate. M. Renouard, in his excellent work, Du Droit industriel, recognizes this: 'Of strict natural right, the occupation of land present serious difficulty in execution. It only gives a right over the soil actually held in possession.' Without this limit, in fact, a single man might, by some manifest sign of his intention, occupy a whole province.

''Occupation is a fact resulting from chance or force. There are three of us on an island large enough to support us all, if we have each an equal part; if, by superior activity, I occupy two-thirds of it, is one of the others to die of hunger, or else become my slave? In this case the instinct of justice has always commanded an equal partition. Hence we do conceive of a right of acquisition, anterior and superior to the simple fact of apprehension, which it is called upon to limit and regulate ... .

''The second theory of property would make labour its basis, This is the one adopted by economists, because, since Adam Smith, they have attributed to labour the production of wealth. Locke was the first to expound this system clearly, in his Second Treatise on Civil Government, Briefly, this is a summary of what he says on the subject:-

''God gave the soil to mankind at large, but as no one enjoys either the soil or that which it produces unless he be owner, individuals must be allowed the use, to the exclusion of all others.

''Everyone has an exclusive right over his own person. The labour of his body and the work of his hands therefore are likewise his property. No one can have a greater right than he to that which he has acquired, especially if there remains a sufficiency of similar objects for others. My labour, withdrawing objects from the state of community makes them mine. But the right of acquisition must be limited by reason and equity. 'If one exceeds the bounds of moderation and takes more than he has need of, he undoubtedly takes what belongs to others.'

''The limit indicated by Locke is, for moveable things, the amount which we may take without allowing them to spoil. For land, the limit is the amount which we can cultivate ourselves, and the condition that there be left as much for others as they require. 'The measure of property,' he says, 'nature has well set by the extent of man's labour and the conveniences of life; no man's labour could subdue, or appropriate all; nor could his enjoyment consume more than a small part; so that it was impossible for any man, this way, to encroach upon the right of another, or acquire to himself a property, to the prejudice of his neighbor, who would still have room for as good and as large a possession. This measure, we see, confines every man's possession to a very moderate proportion, and such as he might appropriate to himself, without injury to anybody.'

''So according to Locke the great principle is this: 'Every one ought to have as much property as is necessary for his support.'

''The necessity of private property results 'from the conditions of human life, which require labour and some material on which it may be exercised.'

''As Locke admits, on the one hand an equality of right in all men, and on the other hand the necessity for every man to have a certain portion of material, on which to live by his labour, it follows that he recognizes a natural right of property in every one.

''This theory is certainly more plausible than that of occupation. As M. Roder very justly remarks in his work, Die Grundzuge des Naturrechts, § 79, labour establishes between man and the objects which he has transformed a far closer connexion than mere occupation, whether symbolical or even actual. Labour creates value; accordingly it seems just that he who has given birth to it, should also enjoy it. Moreover, as no one can legitimately retain more than that which he can cultivate, there is a limit which prevents usurpation. But no legislation ever allowed that labour or specification was alone a sufficient title to establish property. He who is not already owner of the land or the material transformed, acquires nothing by his labour but a right to compensation or to remove the buildings and plantations set upon another man's land. Kant had already remarked that the cultivation of the soil was not sufficient to confer the ownership. 'If labour alone,' says M. Renouard (Du Droit industriel, p. 269), 'conferred a legitimate ownership, logic would demand that so much of the material produced, as exceeds the remuneration of such labour, should be regarded as not duly acquired.'

''Nay more: according to this theory the owner would manifestly have no right to full value of land let to a tenant. The tenant would become co-proprietor in proportion as the land was improved by his labour; and, at the end of a certain number of years, the proprietor would entirely lose all right of ownership. In any case, he could never raise the rent; for to do so, would be to appropriate the profits of another's labour, which would obviously be robbery.

''If labour were the only legitimate source of property, it would follow that a society, in which so many labourers live in poverty and so many idlers in opulence, is contrary to all right and a violation of the true foundation of property.

''The theory so impudently adopted by most economists, and even by M. Thiers in his book, De la Proprie'te', would therefore be a condemnation of all our modern organization. Jurists have violently opposed the theory. The summary of their objections may be found in M. Warnkoenig's work, Doctrina juris philosophica, p. 121, and in the Naturrecht of Ahrens. If labour is the source of property, why should the Institutes and the Code civil have said nothing of it? It may be said that labour ought to be the source of all property, but this principle would be condemnatory of the existing organization of society.

''In order to explain why men abandoned the primitive community, it has been asserted to have been in consequence of a convention, and thus property would be the product of a contract. This theory has even less to sustain it than the preceding.

''In the first place, when we seek to derive a right from a fact, we are bound to establish the reality of that fact, otherwise the right has no foundation. Now, if we go back to the historic origin of property, we find no trace of such a contract. Moreover, this convention, which we should to seek in the night of past ages, cannot bind existing generations, and consequently cannot serve as the basis of property at the present time. Convention cannot create a general right, for it itself has no value, except so far as it is conformable to justice. If property is legitimate and necessary, it must be maintained; but a decision taken by our remote ancestors will not entitle it to respect.

''Kant holds that specification creates a provisional ownership, which only becomes final by the consent of all the members of the society. Kant does not maintain that this consent was a historic fact: he speaks of it as a juristic necessity, or a fact the justice of which commands respect. But the moment we introduce the idea of justice, we are demanding of the general principles of law the sanction of human institutions, and to what purpose is it then to invoke a convention which has never occurred? It is enough to show that property is conformable to right.

''Without having recourse to abstract notions of justice or to the obscurities of historic origins, many writers of very different shades have maintained that property is the creature of law.

'' 'Banish governments,' says Bossuet, 'and the earth and all its fruits are as much the common property of all mankind as the air and the light. According to this primitive natural right, no one has an exclusive right to anything, but everything is a prey for all. In a regulated government, no individual may occupy anything. ... Hence arises the right of property, and, generally speaking, every right must spring from public authority.'

''Montesquieu uses nearly the same language as Bossuet: 'As men have renounced their natural independence to live under political laws, they have also renounced the natural community of goods to live under civil laws. The former laws give them liberty, the latter property.'

''Mirabeau said, in the tribune of the Constituent Assembly, 'Private property is goods acquired by virtue of the law. The law alone constitutes property, because the public will alone can effect the renunciation of all and give a common title, a guarantee for individual enjoyment.' Tronchet, one of the jurists who contributed most to the formation of the Code civil, also said: 'It is only the establishment of society and conventional laws that are the true source of the right of property.' Touillier, in his commentary on the Droit civil francais, admits the same principle. 'Property,' according, to Robespierre, 'is the right of every citizen to enjoy the portion of goods guaranteed to him by law.' In his Treatise on Legislation, Bentham says: 'For the enjoyment of that which I regard as mine, I can only count on the promises of the law which guarantees it to me. Property and the law were born together, and will perish together. Before law, there was no property; banish law, and all property ceases.' Destutt de Tracy expresses the same opinion; and more recently, M. Laboulaye in his Histoire de la propri'et'e en Occident, formulates it with great exactness: 'Detention of the soil is a fact for which force alone can compel respect, until society takes up the cause of the holder. The laws not only protect property, they give birth to it. ... The right of property is not natural but social.' It is certain, in fact, as M. Maynz remarks, that 'the three legislations (Roman, German and Slavonic) which now divide Europe, derive from the State exclusively the absolute power over goods which we designate by the word property or ownership.'

''If Mr. Laboulaye and other authors of his opinion only intended to speak of a state of fact, they are right. If I have gathered fruits or occupied a spot of land, my right hand at first, and subsequently the power of the state, guarantee me the enjoyment thereof. But what is it that my strong hand or the power of the state ought to guarantee to me? What are the proper limits of mine and thine? is the question we have to determine. The law creates property, we are told; but what is this law, and who establishes it? The right of property has assumed the most diverse forms: which one must the legislator sanction in the cause of justice and the general interest?

''To frame a law regulating property, we must necessarily know what this right of property should be. Hence the notion of property must precede the law which regulates it.

''Formerly the master was recognized as owner of his slave; was this legitimate property, and did the law, which sanctioned it, create a true right? No: things are just or unjust, institutions are good or bad, before a law declares them as such, exactly as two and two make four even before the fact be formulated. The relations of things do not depend on human will. Men may make good laws and bad laws, sanction right or violate it, right exists none the less. Unless every law is maintained to be just, we must allow that law does not create right. On the contrary, it is because we have an idea of justice superior to laws and conventions, that we can assert these laws or conventions to be just or unjust.''

''A relatively modern theory takes the position that property arose because of its utility. 'Who would care to save and renounce immediate enjoyment, if he could not reckon on further enjoyment? 'Landed property,' said Mill, 'if legitimate, must rest on some other justification than the right of the labourer to what he has created by his labour. The land is not of man's creation; and for a person to appropriate to himself a mere gift of nature not made to him in particular, but which belonged as much to all others until he took possession of it, is prima facie an injustice to all the rest. ... The private appropriation of land has been deemed to be beneficial to those who do not, as well as to those who do, obtain a share. And in what manner beneficial? Let us take particular note of this. Beneficial, because the strongest interest which the community and the human race have in the land is that it should yield the largest amount of food, and other necessary or useful things required by the community. Now though the land itself is not the work of human beings, its produce is; and to obtain enough of that produce somebody must exert much labour, and in order that this labour may be supported, must expend a considerable amount of the savings of previous labours. Now we have been taught by experience that the great majority of mankind will work much harder, and make much greater pecuniary sacrifices, for themselves and their immediate descendants than for the public. In order, therefore to give the greatest encouragement to production, it has been thought right that individuals should have an exclusive property in land, so that they may have the most possible to gain by making the land as productive as they can, and may be in no danger of being hindered from doing so by the interference of any one else. This is the reason usually assigned for allowing the land to be private property, and it is the best reason that can be given.' ''



If property originated in considerations of general utility, it is quite understandable that its incidents from time to time should deserve constant reexamination as to their continued conformity to new wants and the new circumstances of a changing society.


Whether this pragmatic theory of the origin of property is true or untrue is not too important for our purposes. It is important, however, to believe, and to act as if we believed, that private property must find its justification solely in its social contribution.


Marx is not the only one to have warned of problems in private property rights (at least as defined and awarded in western societies). Henry Gorge, Plato, Pierre-Joseph Proudhon, Jean Jacques Rousseau, and many early Christian philosophers also cautioned of property. Private property, it has been argued, inevitably creates a growing inequality of wealth which is morally unjustifiable and leads to social instability. Private property, it also has been urged, undermines good moral character. Recent scholars have argued that what some see as the advantages of private property can be disadvantages to others. In response to the argument that private property increases “the psychic good of certainty,” for example some argue that “to enhance certainty for one person is to impair certainty for another.” These arguments have led some to reject private property entirely and others to urge limitations on property rights.

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