idea of occupation and treating property as a realization of the idea
of liberty. Property, he says, "makes objective my personal,
individual will." In order to reach the complete liberty involved in
the idea of liberty, one must give his liberty an external sphere.
Hence a person has a right to direct his will upon an external object
and an object on which it is so directed becomes his. It is not an end
in itself; it gets its whole rational significance from his will. Thus
when one appropriates a thing, fundamentally he manifests the majesty
of his will by demonstrating that external objects that have no wills
are not self-sufficient and are not ends in themselves. It follows
that the demand for equality in the division of the soil and in other
forms of wealth is superficial. For, he argues, differences of wealth
are 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, and to the infinite diversity of individual mind and
character that leads A to attach his will to this and B to attach his
will to that. Men are equal as persons. With respect to the principle
of possession they stand alike. Everyone must have property of some
sort in order to be free. Beyond this, "among persons differently
endowed inequality must result and equality would be wrong."
Nineteenth-century metaphysical theories of property carry out these
ideas or develop this method. And it is to be noted that they are all
open to attack from the standpoint of the theory of _res extra
commercium_. Thus Hegel's theory comes to this: Personality involves
exercise of the will with respect to things. When one has exercised
his will with respect to a thing and so has acquired a power of
control over it, other wills are excluded from this thing and are to
be directed toward objects with which other personalities have not
been so identified. So long as there are vacant lands to occupy,
undeveloped regions awaiting the pioneer, unexploited natural
resources awaiting the prospector--in short, so long as there are
enough physical objects in reach, if one may so put it, to go
round--this would be consistent with the nineteenth-century theory of
justice. But when, as at the end of the nineteenth century, the world
becomes crowded and its natural resources have been appropriated and
exploited, so that there is a defect in material nature whereby such
exercise of the will by some leaves no objects upon which the wills of
others may be exerted, or a deficiency such as to prevent any
substantial exertion of the will, it is difficult to see how Hegel's
argument may be reconciled with the argument put behind the conception
of _res extra commercium_. Miller, a Scotch Hegelian, seeks to meet
this difficulty. He says that beyond what is needed for the natural
existence and development of the person, property "can only be held as
a trust for the state." In modern times, however, a periodical
redistribution, as in antiquity, is economically inadmissible. Yet if
anyone's holdings were to exceed the bounds of reason, "the
legislature would undoubtedly interfere on behalf of society and
prevent the wrong which would be done by caricaturing an abstract
right." In view of our bills of rights, an American Hegelian could not
invoke the _deus ex machina_ of an Act of Parliament so conveniently.
Perhaps he would fall back on graduated taxation and inheritance
taxes. But does not Miller when hard pressed resort to something very
like social-utilitarianism?
Lorimer connects the metaphysical theory with theories resting on
human nature. To begin with, he deduces the whole system of property
from a fundamental proposition that "the right to be and to continue
to be implies a right to the conditions of existence." Accordingly he
says that the idea of property is inseparably connected "not only with
the life of man but with organic existence in general"; that "life
confers rights to its exercise corresponding in extent to the powers
of which it consists." When, however, this is applied in explaining
the basis of the present proprietary system in all its details resort
must be had to a type of artificial reasoning similar to that employed
by the jurists of the seventeenth and eighteenth centuries. The
abstract idea of ownership is not the only thing the legal philosopher
has to consider. Moreover the reasoning by which that application is
made may not be reconciled with the arguments by which the doctrine
of _res extra commercium_ is regarded also as a bit of natural law.
Although it purports to be wholly different, the positive theory of
the basis of property is essentially the same as the metaphysical.
Thus Spencer's theory is a deduction from a fundamental "law of equal
freedom" verified by observation of the facts of primitive society.
But the "law of equal freedom" supposed to be ascertained by
observation, in the same way in which physical or chemical laws are
ascertained, is in fact, as has often been pointed out, Kant's formula
of justice. And the verification of deductions from this law by
observation of the facts of primitive civilization is not essentially
different from the verification of the deductions from the
metaphysical fundamental law carried on by the historical jurists. The
metaphysical jurist reached a principle metaphysically and deduced
property therefrom. The historical jurist thereupon verified the
deduction by showing the same principle as the idea realizing itself
in legal history. In the hands of the positivists the same principle
is reached by observation, the same deduction is made therefrom, and
the deduction is verified by finding the institution latent in
primitive society and unfolding with the development of civilization.
The most notable difference is that the metaphysical and historical
jurists rely chiefly on primitive occupation of ownerless things,
while the positivists have been inclined to lay stress upon creation
of new things by labor. In any event, laying aside the verification
for the moment, the deduction as made by Spencer involves the same
difficulties as those involved in the metaphysical deduction.
Moreover, like the metaphysical deduction, it accounts for an abstract
idea of private property rather than for the regime that actually
exists. Inequalities are assumed to be due to "greater strength,
greater ingenuity or greater application" of those who have acquired
more than their fellows. Hence, as the end of law is taken to be the
bringing about of a maximum of individual free self-assertion, any
interference with one's holding the fruits of his greater strength or
greater ingenuity or greater application, and his resulting greater
activity in creative or acquisitive self-assertion, would contravene
the very purpose of the legal order. It will be noted also that this
theory, like all that had gone before, assumes a complete _ius
disponendi_ as implied in the very notion of property. But does not
this also require demonstration? Is the _ius disponendi_ implied in
the idea which they demonstrate or is it only an incident of the
institution they are seeking to explain by the demonstration?
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. Let us look at
each of these propositions in some detail.
If we examine the law of property analytically, we may see three
grades or stages in the power or capacity which men have of
influencing the acts of others with respect to corporeal objects. One
is a mere condition of fact, a mere physical holding of or physical
control over the thing without any other element whatever. The Roman
jurists called this natural possession. We call it custody. Writers on
analytical jurisprudence regard it as an element of possession. But
this natural possession is something that may exist independently of
law or of the state, as in the so-called _pedis possessio_ of American
mining law, where, before law or state authority had been extended to
the public domain in the mining country, the miners recognized the
claim of one who was actually digging to dig without molestation at
that spot. The mere having of an object in one's actual grasp gives an
advantage. But it may be only an advantage depending on one's strength
or on recognition of and respect for his personality by his fellow
men. It is not a legal advantage except as the law protects
personality. It is the physical person of the one in natural
possession which is secured, not his relation to the thing held.
Analytically the next grade or stage is what the Romanist calls
juristic possession as distinguished from natural possession. This is
a legal development of the extra-legal idea of custody. Where custody
or the ability to reproduce a condition of custody is coupled with the
mental element of intention to hold for one's own purposes, the legal
order confers on one who so holds a capacity protected and maintained
by law so to hold, and a claim to have the thing restored to his
immediate physical control should he be deprived of it. As the
Romanist puts it, in the case of natural possession the law secures
the relation of the physical person to the object; in juristic
possession the law secures the relation of the will to the object. In
the highest grade of proprietary relation, ownership, the law goes
much further and secures to men the exclusive or ultimate enjoyment or
control of objects far beyond their capacity either to hold in custody
or to possess--that is, beyond what they could hold by physical force
and beyond what they could actually hold even by the help of the
state. Natural possession is a conception of pure fact in no degree
dependent upon law. The legally significant thing is the interest of
the natural possessor in his personality. Possession or juristic
possession is a conception of fact and law, existing as a pure
relation of fact, independent of legal origin, but protected and
maintained by law without regard to interference with personality.
Ownership is a purely legal conception having its origin in and
depending on the law.
In general the historical development of the law of property follows
the line thus indicated by analysis. In the most primitive social
control only natural possession is recognized and interference with
natural possession is not distinguished from interference with the
person or injury to the honor of the one whose physical contact with
the physical object is meddled with. In the earlier legal social
control the all-important thing is seisin, or possession. This is a
juristic possession, a conception both of fact and of law. Such
institutions as tortious conveyance by the person seised in the
common law are numerous in an early stage of legal development. They
show that primarily the law protected the relation to an object of one
who had possession of it. Indeed the idea of _dominium_, or ownership
as we now understand it, was first worked out thoroughly in Roman law,
and other systems got their idea of it, as distinguished from seisin,
from the Roman books.
Recognition of individual interests of substance, or in other words
individual property, has developed out of recognition of group
interests, just as recognition of individual interests of personality
has evolved gradually from what in the first instance was a
recognition of group interests. The statement which used to be found
in the books that all property originally was owned in common means
nothing more than this: When interests of substance are first secured
they are interests of groups of kindred because in tribally organized
society groups of kindred are the legal units. Social control secures
these groups in the occupation of things which they have reduced to
their possession. In this sense the first property is group property
rather than individual property. Yet it must be noted that wherever we
find a securing of group interests, the group in occupation is secured
against interference of other groups with that occupation. Two ideas
gradually operated to break up these group interests and bring about
recognition of individual interests. One of these is the partition of
households. The other is the idea of what in the Hindu law is called
self-acquired property.
In primitive or archaic society as households grow unwieldy there is a
partition which involves partition of property as well as of the
household. Indeed in Hindu law partition is thought of as partition of
the household primarily and as partition of property only
incidentally. Also in Roman law the old action for partition is called
the action for partitioning the household. Thus, at first, partition
is a splitting up of an overgrown household into smaller households.
Presently, however, it tends to become a division of a household among
individuals. Thus in Roman law on the death of the head of a
household each of his sons in his power at his death became a _pater
familias_ and could bring a proceeding to partition the inheritance
although he might be the sole member of the household of which he was
the head. In this way individual ownership became the normal condition
instead of household ownership. In Hindu law household ownership is
still regarded as the normal condition. But with changes in society
and the rise of commercial and industrial activity, a change has been
taking place rapidly which is making individual ownership the normal
type in fact, if not in legal theory.
Self-acquired property, the second disintegrating agency, may be seen
in Hindu law and also in Roman law. In Hindu law all property is
normally and _prima facie_ household property. The burden is upon
anyone who claims to be the individual owner of anything. But an
exceptional class of property is recognized which is called
self-acquired property. Such property might be acquired by "valor,"
that is, by leaving the household and going into military service and
thus earning or acquiring by way of booty, or by "learning," that is,
by withdrawing from the household and devoting oneself to study and
thus acquiring through the gifts of the pious or the exercise of
knowledge. A third form was recognized later, namely, property
acquired through the use of self-acquired property. In the same way in
Roman law the son in the household, even if of full age, normally had
no property. Legally all property acquired by any member of the
household was the property of the head of the household as the legal
symbol and representative thereof. Later the head of the household
ceases to be thought of as symbolizing the household and the property
was regarded legally as his individual property. But Roman law
recognized certain kinds of property which sons in the household might
hold as their own. The first of these was property earned or acquired
by the son in military service. Later property earned in the service
of the state was added. Finally it came to be law that property
acquired otherwise than through use of the patrimony of the household
might be held by the son individually though he remained legally under
the power of the head.
In the two ways just explained, through partition and through the idea
of self-acquired property, individual interests in property came to be
recognized throughout the law. Except for the institution of community
property between husband and wife in civil-law countries, or as it is
called the matrimonial property regime, there is practically nothing
left of the old system of recognized group interests. And even this
remnant of household group ownership is dissolving. All legally
recognized interests of substance in developed legal systems are
normally individual interests. To the historical jurist of the
nineteenth century, this fact, coupled with the development of
ownership out of possession, served to show us the idea which was
realizing in human experience of the administration of justice and to
confirm the position reached by the metaphysical jurists. Individual
private property was a corollary of liberty and hence law was not
thinkable without it. Even if we do not adopt the metaphysical part of
this argument and if we give over the idealistic-political
interpretation of legal history which it involves, there is much which
is attractive in the theory of the historical jurists of the last
century. Yet as we look at certain movements in the law there are
things to give us pause. For one thing, the rise and growth of ideas
of "negotiability," the development of the maxim _possession vaut
titre_ in Continental law, and the cutting down in other ways of the
sphere of recognition of the interest of the owner in view of the
exigencies of the social interest in the security of transactions,
suggests that the tendency involved in the first of the two
propositions relied on by the historical school has passed its
meridian. The Roman doctrine that no one may transfer a greater title
than he has is continually giving way before the demand for securing
of business transactions had in good faith. And in Roman law in its
maturity the rules that restricted acquisition by adverse possession
and enabled the owner in many cases to reclaim after any lapse of
time were superseded by a decisive limitation of actions which cut
off all claims. The modern law in countries which take their law
from Rome has developed this decisive limitation. Likewise in our
law the hostility to the statute of limitations, so marked in
eighteenth-century decisions, has given way to a policy of upholding
it. Moreover the rapid rise in recent times of limitations upon the
_ius disponendi_, the imposition of restrictions in order to secure
the social interest in the conservation of natural resources, and
English projects for cutting off the _ius abutendi_ of the landowner,
could be interpreted by the nineteenth-century historical jurists only
as marking a retrograde development. When we add that with the
increase in number and influence of groups in the highly organized
society of today a tendency is manifest to recognize practically and
in back-handed ways group property in what are not legal entities, it
becomes evident that the segment of experience at which the historical
jurists were looking was far too short to justify a dogmatic
conclusion, even admitting the validity of their method.
It remains to consider some twentieth-century theories. These have not
been worked out with the same elaboration and systematic detail as
those of the past, and as yet one may do no more than sketch them.
An instinctive claim to control natural objects is an individual
interest of which the law must take account. This instinct has been
the basis of psychological theories of private property. But thus far
these theories have been no more than indicated. They might well be
combined with the historical theory, putting a psychological basis in
place of the nineteenth-century metaphysical foundation. A
social-psychological legal history might achieve much in this
connection.
Of sociological theories, some are positivist, some psychological and
some social-utilitarian. An excellent example of the first is Duguit's
deduction from social interdependence through similarity of interest
and through division of labor. He has but sketched this theory, but
his discussion contains many valuable suggestions. He shows clearly
enough that the law of property is becoming socialized. But, as he
points out, this does not mean that property is becoming collective.
It means that we are ceasing to think of it in terms of private right
and are thinking of it in terms of social function. If one doubts this
he should reflect on recent rent legislation, which in effect treats
the renting of houses as a business affected with a public interest in
which reasonable rates must be charged as by a public utility. Also it
means that cases of legal application of wealth to collective uses are
becoming continually more numerous. He then argues that the law of
property answers to the economic need of applying certain wealth to
definite individual or collective uses and the consequent need that
society guarantee and protect that application. Hence, he says,
society sanctions acts which conform to those uses of wealth which
meet that economic need, and restrains acts of contrary tendency. Thus
property is a social institution based upon an economic need in a
society organized through division of labor. It will be seen that the
results and the attitude toward the law of property involved are much
the same as those which are reached from the social-utilitarian
standpoint.
Psychological sociological theories have been advanced chiefly in
Italy. They seek the foundation of property in an instinct of
acquisitiveness, considering it a social development or social
institution on that basis.
Social-utilitarian theories explain and justify property as an
institution which secures a maximum of interests or satisfies a
maximum of wants, conceiving it to be a sound and wise bit of social
engineering when viewed with reference to its results. This is the
method of Professor Ely's well-known book on Property and Contract. No
one has yet done so, but I suspect one might combine this mode of
thought with the civilization interpretation of the Neo-Hegelians and
argue that the system of individual property, on the whole, conduces
to the maintaining and furthering of civilization--to the development
of human powers to the most of which they are capable--instead of
viewing it as a realization of the idea of civilization as it unfolds
in human experience. Perhaps the theories of the immediate future will
run along some such lines. For we have had no experience of conducting
civilized society on any other basis, and the waste and friction
involved in going to any other basis must give us pause. Moreover,
whatever we do, we must take account of the instinct of
acquisitiveness and of individual claims grounded thereon. We may
believe that the law of property is a wise bit of social engineering
in the world as we know it, and that we satisfy more human wants,
secure more interests, with a sacrifice of less thereby than by
anything we are likely to devise--we may believe this without holding
that private property is eternally and absolutely necessary and that
human society may not expect in some civilization, which we cannot
forecast, to achieve something different and something better.
VI
Contract
Wealth, in a commercial age, is made up largely of promises. An
important part of everyone's substance consists of advantages which
others have promised to provide for or to render to him; of demands to
have the advantages promised which he may assert not against the world
at large but against particular individuals. Thus the individual
claims to have performance of advantageous promises secured to him. He
claims the satisfaction of expectations created by promises and
agreements. If this claim is not secured friction and waste obviously
result, and unless some countervailing interest must come into account
which would be sacrificed in the process, it would seem that the
individual interest in promised advantages should be secured to the
full extent of what has been assured to him by the deliberate promise
of another. Let us put this in another way. In a former lecture I
suggested, as a jural postulate of civilized society, that in such a
society men must be able to assume that those with whom they deal in
the general intercourse of the society will act in good faith, and as
a corollary must be able to assume that those with whom they so deal
will carry out their undertakings according to the expectations which
the moral sentiment of the community attaches thereto. Hence, in a
commercial and industrial society, a claim or want or demand of
society that promises be kept and that undertakings be carried out in
good faith, a social interest in the stability of promises as a social
and economic institution, becomes of the first importance. This social
interest in the security of transactions, as one might call it,
requires that we secure the individual interest of the promisee, that
is, his claim or demand to be assured in the expectation created,
which has become part of his substance.