four claims. One is a claim to the control of certain corporeal
things, the natural media on which human existence depends. Another is
a claim to freedom of industry and contract as an individual asset,
apart from free exercise of one's powers as a phase of personality,
since in a highly organized society the general existence may depend
to a large extent upon individual labor in specialized occupations,
and the power to labor freely at one's chosen occupation may be one's
chief asset. Third, there is a claim to promised advantages, to
promised performances of pecuniary value by others, since in a complex
economic organization with minute division of labor and enterprises
extending over long periods, credit more and more replaces corporeal
wealth as the medium of exchange and agency of commercial activity.
Fourth, there is a claim to be secured against interference by
outsiders with economically advantageous relations with others,
whether contractual, social, business, official or domestic. For not
only do various relations which have an economic value involve claims
against the other party to the relation, which one may demand that the
law secure, but they also involve claims against the world at large
that these advantageous relations, which form an important part of the
substance of the individual, shall not be interfered with. Legal
recognition of these individual claims, legal delimitation and
securing of individual interests of substance is at the foundation of
our economic organization of society. In civilized society men must be
able to assume that they may control, for purposes beneficial to
themselves, what they have discovered and appropriated to their own
use, what they have created by their own labor and what they have
acquired under the existing social and economic order. This is a
jural postulate of civilized society as we know it. The law of
property in the widest sense, including incorporeal property and the
growing doctrines as to protection of economically advantageous
relations, gives effect to the social want or demand formulated in
this postulate. So also does the law of contract in an economic order
based upon credit. A social interest in the security of acquisitions
and a social interest in the security of transactions are the forms of
the interest in the general security which give the law most to do.
The general safety, peace and order and the general health are secured
for the most part by police and administrative agencies. Property and
contract, security of acquisitions and security of transactions are
the domain in which law is most effective and is chiefly invoked.
Hence property and contract are the two subjects about which
philosophy of law has had the most to say.
In the law of liability, both for injuries and for undertakings,
philosophical theories have had much influence in shaping the actual
law. If they have grown out of attempts to understand and explain
existing legal precepts, yet they have furnished a critique by which
to judge those precepts, to shape them for the future and to build new
ones out of them or upon them. This is much less true of philosophical
theories of property. Their role has not been critical or creative but
explanatory. They have not shown how to build but have sought to
satisfy men with what they had built already. Examination of these
theories is an illuminating study of how philosophical theories of law
grow out of the facts of time and place as explanations thereof and
then are given universal application as necessarily explanatory or
determinative of social and legal phenomena for all time and in every
place. It has been said that the philosophy of law seeks the permanent
or enduring element in the law of the time and place. It would be
quite as true to say that it seeks to find in the law of the time and
place a permanent or enduring picture of universal law.
It has been said that the individual in civilized society claims to
control and to apply to his purposes what he discovers and reduces to
his power, what he creates by his labor, physical or mental, and what
he acquires under the prevailing social, economic or legal system by
exchange, purchase, gift or succession. The first and second of these
have always been spoken of as giving a "natural" title to property.
Thus the Romans spoke of them as modes of "natural acquisition" by
occupation or by specification (making a species, i.e., creation).
Indeed, taking possession of what one discovers is so in accord with a
fundamental human instinct that discovery and occupation have stood in
the books ever since substantially as the Romans stated them. A
striking example of the extent to which this doctrine responds to
deep-seated human tendencies is afforded by the customs as to
discovery of mineral on the public domain upon which American mining
law is founded and the customs of the old whale-fishery as to
fast-fish and loose-fish which were recognized and given effect by the
courts. But there is a difficulty in the case of creation or
specification in that except where the creation is mental only
materials must be used, and the materials or tools employed may be
another's. Hence Grotius reduced creation by labor to occupation,
since if one made from what he discovered, the materials were his by
occupation, and if not, the title of others to the materials was
decisive. This controversy as to the respective claims of him who
creates by labor and him who furnishes the materials goes back to the
Roman jurists of the classical period. The Proculians awarded the
thing made to the maker because as such it had not existed previously.
The Sabinians awarded it to the owner of the materials because without
materials the new thing could not have been made. In the maturity of
Roman law a compromise was made, and various compromises have obtained
ever since. In modern times, however, the claim of him who creates has
been urged by a long line of writers beginning with Locke and
culminating in the socialists. The Romans spoke of what one acquired
under the prevailing social, economic or legal system as held by
"civil" acquisition and conceived that the principle _suum cuique
tribuere_ secured the thing so acquired as being one's own.
Roman jurists recognized that certain things were not subject to
acquisition in any of the foregoing ways. Under the influence of the
Stoic idea of _naturalis ratio_ they conceived that most things were
destined by nature to be controlled by man. Such control expressed
their natural purpose. Some things, however, were not destined to be
controlled by individuals. Individual control would run counter to
their natural purpose. Hence they could not be the subjects of private
ownership. Such things were called _res extra commercium_. They might
be excluded from the possibility of individual ownership in any of
three ways. It might be that from their nature they could only be
used, not owned, and from their nature they were adapted to general
use. These were _res communes_. Or it might be that they were made for
or from their nature they were adapted to public use, that is use for
public purposes by public functionaries or by the political
community. These were _res publicae_. Again it might be because they
had been devoted to religious purposes or consecrated by religious
acts inconsistent with private ownership. Such things were _res
sanctae_, _res sacrae_ and _res religiosae_. In modern law, as a
result of the medieval confusion of the power of the sovereign to
regulate the use of things (_imperium_) with ownership (_dominium_)
and of the idea of the corporate personality of the state, we have
made the second category into property of public corporations. And
this has required modern systematic writers to distinguish between
those things which cannot be owned at all, such as human beings,
things which may be owned by public corporations but may not be
transferred, and things which are owned by public corporations in full
dominion. We are also tending to limit the idea of discovery and
occupation by making _res nullius_ (e.g., wild game) into _res
publicae_ and to justify a more stringent regulation of individual use
of _res communes_ (e.g., of the use of running water for irrigation or
for power) by declaring that they are the property of the state or
are "owned by the state in trust for the people." It should be said,
however, that while in form our courts and legislatures seem thus to
have reduced everything but the air and the high seas to ownership, in
fact the so-called state ownership of _res communes_ and _res nullius_
is only a sort of guardianship for social purposes. It is _imperium_,
not _dominium_. The state as a corporation does not own a river as it
owns the furniture in the state house. It does not own wild game as it
owns the cash in the vaults of the treasury. What is meant is that
conservation of important social resources requires regulation of the
use of _res communes_ to eliminate friction and prevent waste, and
requires limitation of the times when, places where and persons by
whom _res nullius_ may be acquired in order to prevent their
extermination. Our modern way of putting it is only an incident of the
nineteenth-century dogma that everything must be owned.
It is not hard to see how the Romans came to the distinction that has
obtained in the books ever since. Some things were part of the
Roman's _familia_, were used by him upon the public domain which he
occupied or were traded by him to those with whom he had legal power
of commercial intercourse. He acquired them by discovery, by capture
in war, by labor in agriculture or as an artisan, by commercial
transactions or by inheritance. For these things private actions lay.
Other things were no part of his or of anyone's household. They were
used for political or military or religious purposes or, like rivers,
were put to use by everyone without being consumed thereby. As to
these, the magisterial rather than the judicial power had to be
invoked. They were protected or use of them was regulated and secured
by interdicts. One could not acquire them so as to maintain a private
action for them. Thus some things could be acquired and conveyed and
some could not. In order to be valid, however, according to juristic
theory the distinction must lie in the nature of things, and it was
generalized accordingly.
In a time when large unoccupied areas were open to settlement and
abundant natural resources were waiting to be discovered and
developed, a theory of acquisition by discovery and appropriation of
_res nullius_, reserving a few things as _res extra commercium_, did
not involve serious difficulty. On the other hand, in a crowded world,
the theory of _res extra commercium_ comes to seem inconsistent with
private property and the theory of discovery and occupation to involve
waste of social resources. As to the latter, we may compare the law of
mining and of water rights on the public domain, which developed along
lines of discovery and reduction to possession under the conditions of
1849 and the federal legislation of 1866 and 1872, with recent
legislation proceeding on ideas of conservation of natural resources.
The former requires more consideration. For the argument that excludes
some things from private ownership may seem to apply more and more to
land and even to movables. Thus Herbert Spencer says, in explaining
_res communes_:
"If one individual interferes with the relations of another to the
natural media upon which the latter's life depends, he infringes the
like liberties of others by which his own are measured."
But if this is true of air and of light and of running water, men will
insist upon inquiring why it is not true of land, of articles of food,
of tools and implements, of capital and even, it may be, of the
luxuries upon which a truly human life depends. Accordingly, how to
give a rational account of the so-called natural right of property and
how to fix the natural limits of that right became vexed questions of
philosophical jurisprudence.
Antiquity was content to maintain the economic and social _status quo_
or at least to idealize it and maintain it in an ideal form. The
Middle Ages were content to accept _suum cuique tribuere_ as
conclusive. It was enough that acquisition of land and movables and
private ownership of them were part of the existing social system.
Upon the downfall of authority, seventeenth-and eighteenth-century
jurists sought to put natural reason behind private property as
behind all other institutions. When Kant had undermined this
foundation, the nineteenth-century philosophical jurists sought to
deduce property from a fundamental metaphysical datum; the historical
jurists sought to record the unfolding of the idea of private property
in human experience, thus showing the universal idea; the utilitarian
demonstrated private property by his fundamental test and the
positivist established its validity and necessity by observation of
human institutions and their evolution. In other words, here as
elsewhere, when eighteenth-century natural law broke down, jurists
sought to put new foundations under the old structure of natural
rights, just as natural rights had been put as a new foundation to
support institutions which theretofore had found a sufficient basis in
authority.
Theories by which men have sought to give a rational account of
private property as a social and legal institution may be arranged
conveniently in six principal groups, each including many forms. These
groups may be called: (1) Natural-law theories, (2) metaphysical
theories, (3) historical theories, (4) positive theories, (5)
psychological theories and (6) sociological theories.
Of the natural-law theories, some proceed on a conception of
principles of natural reason derived from the nature of things, some
on conceptions of human nature. The former continue the ideas of the
Roman lawyers. They start with a definite principle found as the
explanation of a concrete case and make it a universal foundation for
a general law of property. As it has been put, they find a postulate
of property and derive property therefrom by deduction. Such theories
usually start either from the idea of occupation or from the idea of
creation through labor. Theories purporting to be based on human
nature are of three forms. Some proceed on a conception of natural
rights, taken to be qualities of human nature reached by reasoning as
to the nature of the abstract man. Others proceed upon the basis of a
social contract expressing or guaranteeing the rights derived by
reason from the nature of man in the abstract. In recent thinking a
third form has arisen which may be called an economic natural law. In
this form of theory, a general foundation for property is derived from
the economic nature of man or from the nature of man as an economic
entity. These are modern theories of natural law on an economic
instead of an ethical basis.
Grotius and Pufendorf may be taken as types of the older natural-law
theories of property. According to Grotius, all things originally were
_res nullius_. But men in society came to a division of things by
agreement. Things not so divided were afterward discovered by
individuals and reduced to possession. Thus things came to be
subjected to individual control. A complete power of disposition was
deduced from this individual control, as something logically implied
therein, and this power of disposition furnished the basis for
acquisition from others whose titles rested directly or indirectly
upon the natural foundation of the original division by agreement or
of subsequent discovery and occupation. Moreover, it could be argued
that the control of an owner, in order to be complete, must include
not only the power to give _inter vivos_ but also the power to provide
for devolution after death as a sort of postponed gift. Thus a
complete system of natural rights of property was made to rest
mediately or immediately upon a postulated original division by
agreement or a subsequent discovery and occupation. This theory should
be considered in the light of the facts of the subject on which
Grotius wrote and of the time when he wrote. He wrote on international
law in the period of expansion and colonization at the beginning of
the seventeenth century. His discussion of the philosophical
foundation of property was meant as a preliminary to consideration of
the title of states to their territorial domain. As things were, the
territories of states had come down in part from the past. The titles
rested on a sort of rough adjustment among the invaders of the Roman
empire. They could be idealized as the result of a division by
agreement and of successions to, or acquisitions from, those who
participated therein. Another part represented new "natural" titles
based on discovery and occupation in the new world. Thus a Romanized,
idealized scheme of the titles by which European states of the
seventeenth century held their territories becomes a universal theory
of property.
Pufendorf rests his whole theory upon an original pact. He argues that
there was in the beginning a "negative community." That is, all things
were originally _res communes_. No one owned them. They were subject
to use by all. This is called a negative community to distinguish it
from affirmative ownership by co-owners. He declares that men
abolished the negative community by mutual agreement and thus
established private ownership. Either by the terms of this pact or by
a necessary implication what was not occupied then and there was
subject to acquisition by discovery and occupation, and derivative
acquisition of titles proceeding from the abolition of the negative
community was conceived to be a further necessary implication.
In Anglo-American law, the justification of property on a natural
principle of occupation of ownerless things got currency through
Blackstone. As between Locke on the one side and Grotius and Pufendorf
on the other, Blackstone was not willing to commit himself to the need
of assuming an original pact. Apparently he held that a principle of
acquisition by a temporary power of control co-extensive with
possession expressed the nature of man in primitive times and that
afterwards, with the growth of civilization, the nature of man in a
civilized society was expressed by a principle of complete permanent
control of what had been occupied exclusively, including as a
necessary incident of such control the _ius disponendi_. Maine has
pointed out that this distinction between an earlier and a later stage
in the natural right of property grew out of desire to bring the
theory into accord with Scriptural accounts of the Patriarchs and
their relations to the land grazed by their flocks. In either event
the ultimate basis is taken to be the nature of man as a rational
creature, expressed in a natural principle of control of things
through occupation or in an original contract providing for such
ownership.
With the revival of natural law in recent years a new phase of the
justification of property upon the basis of human nature has arisen.
This was suggested first by economists who deduced property from the
economic nature of man as a necessity of the economic life of the
individual in society. Usually it is coupled with a psychological
theory on the one side and a social-utilitarian theory on the other
side. In the hands of writers on philosophy of law it has often taken
on a metaphysical color. From another standpoint, what are essentially
natural-law theories have been advocated by socialists, either
deducing a natural right of the laborer to the whole produce of his
labor from a "natural" principle of creation or carrying out the idea
of natural qualities of the individual human being to the point of
denying all private property as a "natural" institution and deducing
a general regime of _res communes_ or _res publicae_.
Metaphysical theories of property are part of the general movement
that replaced seventeenth-and eighteenth-century theories of natural
rights, founded on the nature of the abstract man or on an assumed
compact, by metaphysical theories. They begin with Kant. He first sets
himself to justify the abstract idea of _a_ law of property--the idea
of a system of "external _meum_ and _tuum_." Here, as everywhere else,
he begins with the inviolability of the individual human personality.
A thing is rightfully mine, he says, when I am so connected with it
that anyone who uses it without my consent does me an injury. But to
justify the law of property we must go beyond cases of possession
where there is an actual physical relation to the object and
interference therewith is an aggression upon personality. The thing
can only be mine for the purposes of a legal system of _meum_ and
_tuum_ where I will be wronged by another's use of it when it is not
actually in my possession. This raises in the first instance the
question "How is a merely juridical or rational [as distinguished from
a purely physical] possession possible?" He answers the question by a
metaphysical version of the occupation theory of the eighteenth
century. Conceding that the idea of a primitive community of things is
a fiction, the idea of a logically original community of the soil and
of the things upon it, he says, has objective reality and practical
juridical reality. Otherwise mere objects of the exercise of the will,
exempted therefrom by operation of law, would be raised to the dignity
of free-willing subjects, although they have no subjective claim to be
respected. Thus the first possessor founds upon a common innate right
of taking possession, and to disturb him is a wrong. The first taking
of possession has "a title of right" behind it in the principle of the
original common claim to possession. It results that this taker
obtains a control "realized by the understanding and independent of
relations of space," and he or those who derive from him may possess a
parcel of land although remote from it physically. Such a possession
is only possible in a state of civil society. In civil society, a
declaration by word or act that an external thing is mine and making
it an object of the exercise of my will is "a juridical act." It
involves a declaration that others are under a duty of abstaining from
the use of the object. It also involves an admission that I am bound
in turn toward all others with respect to the objects they have made
"externally theirs." For we are brought to the fundamental principle
of justice that requires each to regulate his conduct by a universal
rule that will give like effect to the will of others. This is
guaranteed by the legal order in civil society and gives us the regime
of external mine and thine. Having thus worked out a theory of _meum_
and _tuum_ as legal institutions, Kant turns to a theory of
acquisition, distinguishing an original and primary from a derived
acquisition. Nothing is originally mine without a juridical act. The
elements of this legal transaction of original acquisition are three:
(1) "Prehension" of an object which belongs to no one; (2) an act of
the free will interdicting all others from using it as theirs; (3)
appropriation as a permanent acquisition, receiving a lawmaking force
from the principle of reconciling wills according to a universal law,
whereby all others are obliged to respect and act in conformity to the
will of the appropriator with respect to the thing appropriated. Kant
then proceeds to work out a theory of derivative acquisition by
transfer or alienation, by delivery or by contract, as a legal giving
effect to the individual will by universal rules, not incompatible
with a like efficacy in action of all other wills. This metaphysical
version of the Roman theory of occupation is evidently the link
between the eighteenth century and Savigny's aphorism that all
property is founded in adverse possession ripened by prescription.
When Kant's theory is examined it will be found to contain both the
idea of occupation and the idea of compact. Occupation has become a
legal transaction involving a unilateral pact not to disturb others in
respect of their occupation of other things. But the pact does not
derive its efficacy from the inherent moral force of a promise as
such or the nature of man as a moral creature which holds him to
promises. Its efficacy is not found in qualities of promises or of
men, but in a principle of reconciling wills by a universal law, since
that principle requires one who declares his will as to object A to
respect the declaration of his neighbor's will as to object B. On the
other hand, the idea of creation is significantly absent. Writing at
the end of the eighteenth century, in view of the ideas of Rousseau,
who held that the man who first laid out a plot of ground and said,
"This is mine," should have been lynched, and of the interferings with
vested rights in Revolutionary France, Kant was not thinking how those
who had not might claim a greater share in what they produced but how
those who had might claim to hold what they had.