University of Virginia Library

PROPERTY

I. INTRODUCTORY OBSERVATIONS

In its widest sense, property denotes the exclusive
relationship of a person or a group of persons to an
object or a complex of objects of material value.
Therefore the history of property accompanies the
history of mankind, from the dawn of civilization.
From time immemorial man has searched for and
consumed food. He has worn clothes and ornaments.
A slightly more advanced stage of civilization means
the exclusive occupation of some piece of land or some
dwelling, however modest, for shelter. In this primitive
sense some form of exclusive personal property is es-
sential to human life. But the social, economic, and
legal history of property, as one of the major aspects
of the evolution of civilization, begins with the appro-
priation and use of land for purposes of exploitation.
In this sense the history of property may be dated from
the time when man, thousands of years ago, began to
abandon his exclusive reliance on hunting and the
gathering of wild fruit for the raising and use of do-
mestic animals. The nomadic phase of economic orga-
nization—which in certain parts of the world endures
to the present day—makes it necessary to apportion
certain pastures for a while, for exclusive use by the
tribe or any other group, and thus brings with it the
first problems of equity in the use of the resources for
the benefit of the group. This is carried much further
when man begins to settle and to cultivate the soil.
The permanent association of a man, a family, or a
group with a piece of soil for purposes of economic
exploitation intensifies the problems of distribution. It
is probable that, in this phase, the notion of private
ownership, meaning the exclusive control over a piece
of land, becomes articulate and raises the age-old
problem of private versus collective property. The
question of ownership of agricultural land also begins
to introduce into the concept or idea of property the
two distinctive aspects of exclusive control over a
certain thing or complex of assets of material value
which have gained increasing significance with the
evolution and the manifold ramifications of property
in more modern times: on the one hand, the privileges
and benefits flowing from the exclusive use of property
for its owner; and, on the other hand, the power which
control of property, beyond personal needs, puts into
the hands of one person or group over others. The age
of feudalism—when, in an elaborate hierarchy, the
feudal owner, in proportion to his rank and place on
the ladder, acquired not only superior wealth through
his enjoyment of the produce of the land but also had,
by virtue of his tenure, power over the ones below
him, especially the peasants—clearly illustrates these
two aspects of property. Both these privileges of prop-
erty raised in an acute form the social problems of
property: inequality in the satisfaction of the needs of
life, and a growing gap between the governors and
the governed through the power that the former exer-
cise over the latter.

The social and economic problems flowing from

increasing inequalities in the enjoyment of the things
that life offers, as well as in the degree of power that
property conveys, are enormously magnified in the
industrial age. It is now that the exclusive control over
things and assets, collectively described as property,
not only widens the gap between the rich and the poor,
but also multiplies the power over an industrial com-
plex that property gives to the property owner. The
inevitable reaction to this phase—starkly illustrated by
the early phases of the Industrial Revolution—is the
social revolution which expresses itself in a multiplicity
of forms: social reform legislation, redistribution of
property, and most of all, socialization of the means
of production.

This brief preliminary survey indicates that while
property in a general sense is as old as the history of
mankind, its meaning and function have varied, and
steadily become more complex, with the evolution of
society. In order to understand this evolution even in
its broadest outline, the following pages will attempt
to survey some of the principal developments from
three perspectives: first, the evolution of the social and
economic function of property; second, the ideology
of property; third, the various legal concepts of prop-
erty. Some brief concluding observations will sketch
the probable evolution of property in our changing
contemporary society.

II. STAGES IN THE SOCIAL AND
ECONOMIC FUNCTION OF PROPERTY

Although we know little about the status and func-
tion of property in most of the earlier, and especially
the non-Western civilizations, it is likely that even
without any customary or statutory legal sanction, the
more purely personal objects especially clothes, jewels,
and other prized personal things have always been
recognized as “belonging” to that particular person.
It is equally likely that in the primitive economies of
scarcity, in which man has lived as a hunter and a
nomad, there must have been some form of collective
ownership and use of beasts hunted for food or of cattle
put to pasture by a nomadic tribe. Exclusive or
privileged claims on the hunted beasts or the produce
of domesticated animals are probably the concomitant
of a developing hierarchy, in which the chieftain or
king receives a share of the wealth produced by the
group, as a symbol of his privileged status.

But apart from such privileges of rank or leadership,
it is significant to note to what extent various agricul-
tural economies of societies different in vocation, na-
tionality, race, and political structure have had col-
lective ownership of the assets needed for their
sustenance. It is both difficult and fruitless to attempt
to analyze how far the sharing of these essential things
can be described as community of ownership or com-
munity of use. The differentiation of the degrees of
legal control—such as the distinction between owner-
ship and possession—is essentially an aspect of more
advanced civilizations and in most respects dates from
the history of Rome. The early Roman gens combined
its members under a common name, in a common cult,
and above all served as a collective organization for
the cultivation and maintenance of the land, e.g., by
irrigation. The absence of private property in land in
the Germanic tribes—as described by Caesar and later
by Tacitus, has often been contrasted, as an early ex-
ample of socialism, with the individualistic develop-
ment of private property in Roman society.

Whatever the reason—whether it be the fact that the
Germans changed at a relatively late stage from a no-
madic forest and pasture economy to the static culti-
vation of soil by agriculture, or certain social and racial
characteristics of the Germanic tribal traditions—
it appears that the German Genossenschaft stood
for collective ownership and distribution of cattle and
other goods. Again, the Russian Mir—which has often
been described as a precursor of the contemporary
collective farm system of the Soviet Union—is an an-
cient Russian rural institution. It was composed of the
heads of families who, in a village or a group of vil-
lages, directed the cultivation of the land, controlling
the size of the different fields as well as the method
of cultivation and agricultural maintenance. Its func-
tions extended to pastures and forests.

In yet another environment characterized by the
overwhelming need for cultivating and sharing avail-
able food resources in a given community, the Chinese
village has for many centuries constituted a basic unit
of common cultivation control. It should be added that
such collective institutions could and did survive the
growing development of a class structure, when princes
and feudal lords acquired the overall dominion over
large lands, while the peasants, forced to work not only
for their own minimum needs but for the demands of
their overlords, preserved communal institutions.

Generally, and in awareness of the inevitable over-
simplification that characterizes a brief general survey,
it may be said that some form of community of prop-
erty predominates in primitive agricultural economies,
at least on the level of those who have to work and
live on the land by agriculture or cattle raising in order
to survive. Private property, even in the preindustrial
age, is essentially the hallmark of a more structured
society, in which almost inevitably those who accumu-
late land not only become the rich members of the
society, but also its political and social leaders.

It is the history of Rome—a society that developed
from a self-supporting agricultural tribal economy to

a complex multinational commercial empire—that
contributed decisively to the evolution of Property as
a theoretical concept. The Roman legal concepts dom-
inate the legal systems of a large part of mankind to
the present day. It is Roman law that developed the
concept of the Dominium ex iure Quiritium, a concept
denoting absolute control over a piece of land and the
sky above it. Much of this was created by the conver-
sion of the Ager Publicus (“public land”), conquered
in war, from possession to the right of exclusive control.
Until the agrarian reforms initiated by the Gracchi,
this was predominantly a privilege of the patricians,
but gradually the plebeians acquired rights in some of
these properties. In contrast to the Quiritian property
—which was subject to very formal procedures of
transfer—the gradual expansion and commercialization
of the Roman Empire created another form of prop-
erty, the so-called bonitarian property, easier to trans-
fer and appropriate to the age of trade and commerce
which requires mobility of goods.

The history of the social and political conflicts of
Rome is to a large extent the history of the conflicts
between patricians and plebeians for the control of
land and other forms of property. In the process, the
Romans developed a clear contrast between public and
private property, the former denoting the domain of
state ownership and the latter of private ownership.
As will be shown in the subsequent section, the Romans
also developed a dichotomy between ownership as a
complete right of control over things movable and
immovable and all other forms of economic interests.
It is equally clear that this theoretical distinction has
no particular relationship to the social, political, and
economic struggle, which marks the history of Rome
as of any other civilization. It is more significant that
as a society develops from a predominantly rural and
agricultural one to a commercial one, the forms and
modalities of ownership multiply, and with it the
increasing distribution of property among a growing
section of the population. Things that can be bought
and traded such as handicraft, commercial merchan-
dise, ships, and many other articles, change hands more
easily and ubiquitously than land.

Nevertheless, it is the control over land that remains
by far the predominant form of property until the
advent of the commercial and industrial age, which
marked the transition from the Middle Ages to modern
Western history. The age of feudalism is characterized
by the degrees of dominion over land in its political
and legal as well as its economic and social aspects.
The hierarchy that, at the height of the Middle Ages,
leads from the emperor through the regional princes
to the lesser lords down to the peasant who cultivates
the land, is marked by the degree of legal control over
the land. The emperor has—an increasingly theoret-
ical—control over the entire realm which is both polit-
ical control (sovereignty) and economic control in the
sense that he exacts dues and tribute from those who
hold the land under him. The political, social, and
economic hierarchy descends to the level where the
peasant, who produces the fruits of the earth by his
labor, has not only the most limited measure of right
over the land that he cultivates but also the lowest
standard of living and the lowest social status.

In escaping from the bondage of feudal land tenure
to the cities, the peasant not only acquires more free-
dom of movement but also the ability to produce and
own more freely by virtue of craftsmanship, commerce,
or other forms of work. This corresponds to the gradual
displacement of an economy based predominantly on
the self-sufficiency of the rural household—producing
its own food, weaving its clothes and making the things
used by the household—by a commercial economy, in
which land increasingly loses its exclusive or predomi-
nant position. But it is an equally important hallmark
of the growing commercial economy that property no
longer means only land and other physical objects but
also a complex of assets (Vermögen). The big merchant
of the sixteenth century not only owns houses, land,
and ships but he also has claims on the money that
he lends to emperors and princes, and on his deposits
in the banks which are developing rapidly in the age
of commerce. He also increases his control, by means
of wage contracts, over the growing number of persons
who work for him in his various commercial and mari-
time enterprises.

But it is the Industrial Revolution that decisively
increases not only the diversity of the modalities of
property but also, and above all, the function of prop-
erty as a means of controlling the lives of others who
do not own property beyond their immediate personal
needs and are dependent for their living on those who
do. The concentration of workers in factories not only
increases the wealth aspects of property, by enabling
the very few who own the complex of assets—land,
buildings, machines—that make up the means of pro-
duction to draw the new proletariat away from the
relative self-sufficiency of land and rural life but also
immensely increases the power enjoyed by the owner
of the means of production over those whom he
employs. In the Marxist theory of property, this be-
comes the Mehrwert, the surplus value, which the
owner of the means of production appropriates to
himself above the minimum needed to keep the
workers alive and capable of working. At later stages
of the Industrial Revolution this growing gap is some-
what mitigated by public law, i.e., by public restric-
tions on the freedom to use property, resulting in a

growing body of social legislation and restrictions on
the use of property which gradually lead to the modern
welfare state.

For the evolution of the concept and function of
property, a more significant development is the gradual
separation in a more advanced stage of the enjoyment
and power aspects of property. The catalyst of this
divorce is the modern corporation in which ownership
becomes depersonalized and diversified in the multi-
tude of shareholders who jointly have the title to the
property represented by the corporation and become
increasingly the recipients of dividends and interest
while the power of command enjoyed by the early
capitalists passes to modern management, a self-
perpetuating oligarchy. The managers of the contem-
porary corporation do not need the formal title to the
property represented by the shares in order to direct
the enterprise.

Various attempts have been made—covering the
entire spectrum of modern political and economic
theory—to overcome this divorce between power and
property. One approach—in essence the contemporary
liberal philosophy—is to spread property as widely as
possible, by limitations on the size of landholdings, and
measures against monopoly or other concentrations of
industrial property. An indirect way to reach a similar
goal is progressive taxation designed to reduce the
inequalities of property by redistribution through the
state. Another more limited attempt is to increase the
role of labor in the management of the modern corpo-
ration, by giving the workers a share in its direction—
an experiment carried out in the postwar German
legislation which gives the workers' representatives a
fixed share in the management of certain industries
(coal and steel).

By far the most radical attempt to counter the power
conferred by property in the industrial society is
socialization. It goes to the root of the property prob-
lem by expropriating the private owners of property
and vesting the title as well as the power of manage-
ment in the state. While in the original Marxist doc-
trine the expropriation of the owners of industrial
property was intended to lead to the abolition of the
entire coercive apparatus of the state, seen as a symbol
of capitalist expropriation, in modern socialist or
communist systems the change over property has
essentially been the vesting of the ownership of indus-
try and business in the state, either direct or through
the instrumentality of state corporations.

Generally, then, the effect of the commercial, and
later the industrial, revolution has been to divorce
property increasingly from the function that, by and
large, it had in the earlier agricultural economy. Then
work and the means of subsistence were centered
around property and land, the home and the tools of
farming, craft, and primitive manufacture, although
even in that phase the accumulation of large properties
in the hands of princes, nobility, and other large owners
created the social inequalities that made property an
instrument of inequality and the ability of a few to
dominate the many. In contemporary industrial society
the enormously increased potential of property as a
vehicle of both wealth and power is countered by a
growing use of public power to mitigate the inequali-
ties, through a limited redistribution of the benefits of
property or, more radically, by the socialization of
private property and the means of production. In con-
temporary Soviet society, some of the original func-
tions of property are restored insofar as private prop-
erty is permitted in private houses, a limited
agricultural acreage for personal consumption, and the
tools of personal craft, while the major means of pro-
duction are owned by the state.

III. THE IDEOLOGY OF PROPERTY

The acknowledgment of the importance of property
as perhaps the most significant single determinant of
the conditions of life, liberty, and the pursuit of happi-
ness is an idea shared by the many conflicting ideolo-
gies of property. But, depending on their philosophies
of life and the human condition, they have developed
starkly contrasting theories. At one end of the spec-
trum, the right to own private property is regarded
as one of the most basic “natural rights,” essential to
the existence and dignity of man. At the other end,
private property is condemned as an evil, as the most
important single instrument of oppression of the many
by the few, and it is the common use of goods by all
members of the community, the counterpart to the
abolition of private property, that is regarded as a
natural condition of man.

The most important ideological justification of
property is that property is seen as a sum product of
the labor of man, who mixes his sweat with the soil
and is entitled to reap the rewards of his work.
Ironically, this philosophy has been most articulately
expressed by the social philosophers of the commercial
and industrial age at a time when the conditions of
society increasingly divorced the opportunities for
accumulation of property from the products of a man's
toil. Not only John Locke and the philosophers of the
American Revolution, but also the German philosopher
Hegel and the doctrine of the modern Catholic church
extol the right of private property on this ground. In
all these ideologies, the social and economic facts, i.e.,
the increasing divorce of labor and property, is ignored.
They are essentially idyllic pictures of a society that
no longer exists. But perhaps the most powerful and

practically influential justification of private property
is a religious philosophy, which not only accepts the
inequalities of property, but regards them as based on
the will of God. Calvinism is a branch of Protestantism
which—in contrast to the Lutheran branch—sees the
accumulation of wealth as a sign of the grace of God,
and poverty as a condition equally imposed and
deserved by the will of God. The practical result of
such an ideology is of course the rejection of any moral
or social duty to equalize the conditions for acquisition
of property. By contrast the earlier Catholic philoso-
phy of Saint Thomas Aquinas and his immediate suc-
cessors regards private property not as a natural right
but as a social condition. The nineteenth-century doc-
trine of the Catholic church, however, postulates the
right of private property as a natural right, tempered
only by the Christian duty of charity.

On the other side, philosophies demanding the com-
plete equalization or abolition of private property have
been formulated throughout history, from the early
stages of Greek civilization through Thomas More's
Utopia (1516) and the Christian Socialists of the nine-
teenth and twentieth centuries. Marxist socialism is,
of course, the most radical of the anti-property
theories. However, it postulates the abolition of private
property not as an ideology but as a dialectical neces-
sity resulting from the increasing concentration of
industrial property, which reduces itself ad absurdum
through increasing monopolization. However, insofar
as Marxism demands action by the proletariat “to
expropriate the expropriators,” it must in effect be
ranged among the philosophies of collectivism. The
difference between the Utopia of Thomas More and
the dialectical socialism of Marx is not so much due
to the tension between ideology and necessity as to
the difference in the social substratum. The problem
of the function and redistribution of property is very
different in the rural and essentially self-sufficient soci-
ety of the sixteenth, as compared with the increasingly
industrialized and urbanized society of the mid-
nineteenth century. The socialist Utopia of Thomas
More can envisage the abolition of all private property
and money. Each family, consisting of forty persons,
is to obtain all its needs on the public market. But
in the complex industrial society, the abolition of the
inequalities and injustices of private property can only
be envisaged not in the form of the abolition of prop-
erty, but in its transfer from private to public hands.

The ideology of private property, as the “natural”
and untouchable expression of personal freedom,
reaches its peak in the latter part of the nineteenth
century, i.e., at the time when the social conditions
of modern industrialized Western society had already
radically altered the assumptions on which the ideology
of private property had built: the identification of man
with land and things within his reach, which he had
essentially acquired, or was capable of shaping, through
the sweat of his brow. Under the fifth and fourteenth
Amendments of the United States Constitution, “No
person shall be... deprived of life, liberty, or prop-
erty, without due process of law;...” In numerous
cases, the Supreme Court of the United States inter-
preted these essentially procedural provisions as con-
stituting an absolute prohibition against interference
with complete freedom of contract—seen as an aspect
of property. This meant, for example, the invalidation
of elementary social welfare statutes, such as a maxi-
mum ten-hour working day or provisions regulating
children's and women's labor. Not only did this inter-
pretation—which, on the whole, prevailed until the
days of the New Deal—mean a complete identification
of the right of private property with the extreme prin-
ciples of a laissez-faire economic philosophy; it also
extended, as a matter of course, the individual rights
formulated by eighteenth-century philosophies for the
human individual, to the modern corporation. The
ideology of the log-cabin pioneer was applied to
corporate entities controlling hundreds of millions of
dollars and employing tens of thousands of persons. The
contemporary American jurist and sociologist Thurman
Arnold has termed this ideology “the folklore of
capitalism.”

About the same time, the first of the modern Encyc-
licals of the Catholic Church issued by Pope Leo X
in 1891 elevated the right of property to an absolute
natural right—departing in this from Saint Thomas
Aquinas. Significantly, both the modern jurisprudence
of the Supreme Court—roughly from 1936 onwards—
and the most recent Encyclicals issued by Pope John
XXIII and Pope Paul VI substantially depart from this
ideology. The former has long accepted the consti-
tutionality of social and economic legislation, while
tending to emphasize more strongly the untouchability
of personal noneconomic freedoms. The latter ac-
knowledge the legitimacy of social and economic leg-
islation for the sake of public welfare and the necessity
of appropriate restrictions on the scope and use of
private property. This leads to many economic and
social systems, ranging from predominantly free enter-
prise to predominantly state-directed systems, short
only of the complete abolition of private property.

While capitalist systems have increasingly modified
the formerly near-absolute ideological and practical
protection of private property, by a complex system
of social welfare legislation, of progressive taxation, of
the transfer of basic industries and utilities to public
ownership (e.g., in Britain, France, Italy, India), social-
ist systems have considerably widened the scope of

private property for personal use. In the U.S.S.R., all
industrial production beyond small artisans' shops is
state-owned and operated by state corporations, while
farming is run either by collective or by state farms.
However, individual ownership of houses and a few
acres, as well as their cultivation and some livestock,
and the ownership of personal implements are permit-
ted and play a not inconsiderable part in the economy.

As has been pointed out earlier, a significant aspect
of the contemporary industrial society is a divorce
between titular ownership and the control of enter-
prises. Hence the question of the legal title to property
is no longer as significant as it was. Publicly and pri-
vately owned enterprises coexist and often compete
with each other while the state controls both through
a variety of devices. This, in the view of many contem-
porary economists and social philosophers, makes the
question of the formal transfer of property from private
into public hands a matter of relatively minor impor-
tance. The power once conveyed by the ownership of
the means of production is not only no longer neces-
sarily linked with formal ownership but it is also cur-
tailed by the controlling powers, planning devices, and
other directive measures of the state. The privileges
conferred by the unlimited use of private property—
leading to a great gap between a rich minority and
a destitute majority—are countered by a variety of
measures, all aimed at a partial redistribution of prop-
erty. Progressive taxation siphons off some of the
benefits of property and uses them for public purposes
or services, such as a national health service, while
anti-trust laws, labor legislation, and other public con-
trols restrain, though by no means eliminate, the power
of the modern corporation.

IV. LEGAL CONCEPTS OF PROPERTY

Although the social and economic functions of
property are determined by the character of the society
in which it operates rather than by legal concepts, the
latter have significantly influenced different develop-
ments in the forms and modalities of property. The
principal difference is between the large number of
civil law systems, which are derived from the Roman
law, and the common law systems, which have de-
veloped pragmatically and historically, essentially
from the English political and social environments.
Romanistic systems define property as the ownership
of things, movable and immovable, while excluding
from “property” in a legal sense any other kind of
economic right, i.e., such intangible rights as patents,
copyrights, trademarks, claims against other persons,
as the creditor has against the debtor, the mortgagee
against the mortgagor, the employer against the em-
ployee, the landlord against the tenant (and vice versa).
The Roman law concept is embodied in the definitions
of property in the Continental civil codes, such as
Article 544 of the French Civil Code which defines
ownership (propriété) as “the right to enjoy and dispose
of the things in the most absolute manner....”

Such a definition, though repeated with relatively
modest variations in the more modern German, Swiss,
and other contemporary codifications, is inadequate in
two ways: in the first place, it artificially divides tangi-
ble objects—movable or immovable—from the in-
creasingly important and manifold types of economic
assets which are of a different character. In the second
place it ignores the extent to which the most important
functions of property can be divorced from the legal
title. As the Austrian jurist and sociologist Karl Renner
pointed out in a book published in 1905, The Institu-
tions of Private Law and Their Social Function, in
industrial society the actual functions of property are
increasingly exercised by those who have acquired the
economic substance but not the legal title: mortgagees,
bankers, and other money lenders, shareholders, and
others. As mentioned earlier, an even more recent
development tends to divorce the control functions of
property from legal ownership altogether, a develop-
ment which is sometimes characterized as the “mana-
gerial society.”

The Anglo-American concept of property has always
been more pragmatic and elastic. Property is a bundle
of powers, and it may include the claim for the repay-
ment of a loan, the title to a mortgage on another man's
land, or a share in a company, as much as the owner-
ship over a piece of land or a chattel. Moreover, the
continuous development of the common law from the
medieval land tenure system has led to the recognition
of various degrees of ownership in land. In theory the
full right of property is vested in the Crown—i.e., the
State—while the others hold “estates” in land measured
in terms of duration. There are freeholds or leaseholds
of 999 or 99 years duration and a variety of other
forms. In substance, this does not greatly affect the
extent and function of ownership. Finally, English law
has developed the concept of the Trust, which is a
splitting up of ownership between a “legal” and an
“equitable” owner, a concept unacceptable to the civil
law systems. The trustee has the powers of the legal
owner, especially the right to administer and sell the
assets, while the beneficiary is entitled to the fruits of
the property. The concept of Trust—which pervades
all spheres of life in the Anglo-American legal world,
such as the administration of estates or club properties
—has no parallel in the world of civil law.

On the other hand, the Continental law, and in
particular French law, distinguishes between public
property (domaine public) and private property

(domaine privé). This distinction—which is not
accepted in all the Continental systems and has no
parallel in the common law—corresponds to the time
honored and sharp divisions between public and pri-
vate law, which has only much more recently been
introduced into the common law systems. An entire
system of administrative jurisprudence has been built
around the distinction between legal relations between
public authority and the citizen on the one hand and
those between private subjects of law on the other
hand. Generally, in the formulation of a modern au-
thority on the French administrative law, a public
domain means “the totality of assets of public entities
and institutions which are either put directly in public
use or affected by a public service....” This comprises
public utilities of all kinds from public waters to rail-
ways, roads, public markets, public libraries, and other
services or entities dedicated to public use.

Contemporary developments in the comparative
jurisprudence of the civil law and the common law
countries show that the conceptual distinctions in the
definitions of property have become increasingly less
significant as compared with the socially and economi-
cally much more important question of the relation
of public power to private property. In common law
as in civil law systems many public utilities such as
railways, electric power, coal and steel, or shipping
have been transferred from private to public ownership
generally through the instrumentality of government
controlled semi-autonomous public corporations. In
common law as in civil law systems, the governments
have extensive powers of expropriation of private
property in the public interest (eminent domain). The
extent as well as the form of the exercise of these
powers are determined by political and economic con-
siderations, not by the legal form. Even the once
extremely sharp distinction between the civil law and
the common law concepts of property—as it has been
briefly described earlier—is no longer absolute. Thus,
modern French law has developed the concept of
propriété commerciale. Under modern French legisla-
tion both businessmen and farmers who rent their
premises and land enjoy certain rights, as against the
titular owner, the essence of which is the claim of the
occupier against the owner for renewal of the lease.
To that extent the owner is deprived of his legal power
to dispose of his property, in favor of the lessee's right
to the continuity of his enterprise. This is a recognition
of the fact—more dramatically illustrated in the de-
velopment of the modern giant corporation—that the
conduct of the enterprise, with or without legal title,
represents the substance of property rights, while the
titular ownership may be reduced to the receipt of
certain rents, dividends, or interest payments.

V. THE FUTURE OF PROPERTY

In many countries, depending on the state of their
historical and cultural traditions, the necessities of
contemporary society have led to public policy re-
straints which have imposed many restrictions upon
the unfettered use of property rights. The traditional
privileges of property, i.e., the more or less unlimited
use and enjoyment of the objects of ownership, incor-
poreal and corporeal, have been severely curbed. The
curbs extend over a wide range, from restrictions on
the free determination of wages, of statutory minimum
standards for food, drugs, machines, factory conditions,
and many more, through the power of expropriation
by public authority for public purposes, to wholesale
socialization and transfer of private property into pub-
lic hands. This does not however mean the end of the
concept or of the significance of property. The pro-
tection of property rights is today spread over the
community as a whole where it has, in the past, essen-
tially benefited the very limited class of owners of land
and commercial property. The effect of the older law
was to give excessive protection—often at the expense
of the essential necessities and liberties of the rest of
the community—to the owners of large estates and
industrial enterprises. The balance is to a large extent
being restored in contemporary society. This corre-
sponds to a wider conception of property, influenced
by new social and economic philosophies. For the vast
majority of people the most essential economic interest
is the right to use one's labor and skills and the assur-
ance by the law that the minimum needs of human
existence will be protected. It is to that end that mod-
ern states today have minimum wage statues, a legal
machinery protecting collective bargaining agree-
ments, public credit institutions that facilitate the
ownership of homes, and statutory protection against
oppressive conditions in installment (hire purchase)
transactions. In the field of family law, almost all legal
systems give statutory minimum rights to dependent
wives and children, and thereby limit the freedom of
the owner of the matrimonial home or other property
assets to dispose of them freely. Thus a deserted wife
is now widely protected, in common law as in civil
law systems, in her occupancy of a house that may
be legally owned by her husband. The big landowner
and the industrial entrepreneur are unquestionably
today far more restricted in the free use of their prop-
erty than in earlier times, even where the property
is not transferred into the hands of the state or another
public entity. But for the average person, who disposes
of limited physical assets and depends for his own and
his family's livelihood mainly on the ability to work,
on fair conditions of trade, and on the enjoyment of
minimum standards of living, property in the wider,

nontechnical sense, i.e., the right and the ability to
enjoy the minimum conditions of human existence,
is today probably far more effectively implemented
than in earlier times. In that sense the intermeshing
of private rights and public law has led to a much more
complex concept and regulation of property, with the
object of giving legal protection and facilities for the
widest possible utilization of a power to create eco-
nomic values to the largest number of people.

BIBLIOGRAPHY

Wolfgang Friedmann, Law in a Changing Society
(London, 1959; 2nd ed. 1972), Chs. 3, 4, 8, 9 survey concepts,
functions, and changes of property law in the context of
the evolution of contemporary industrial society. Vinding
Kruse, The Right of Property, 2 vols. (Oxford, 1939; 1953),
deals with both the broader and the technical aspects of
the right of property, its origins and limits, its functions
in production and circulation, and the various forms of
transfer. Much of it is based on the pioneer Danish Real
Property Act of 1926. F. H. Lawson, Introduction to the
Law of Property (Oxford, 1958), gives a concise survey of
the various legal aspects of property predominantly against
an English background. Franco Negro, Das Eigentum
(Munich and Berlin, 1963), gives a more recent but much
more compressed survey of the legal and social function
of property in history, and for the future. C. R. Noyes, The
Institution of Property (London, 1936), gives an historical
and analytical survey of property, both in its economic and
legal aspects, with particular emphasis on the Roman and
English systems of property and the substance and structure
of modern property. Karl Renner, The Institutions of Private
Law and Their Social Functions (1905; London, 1949), is
a sociological analysis of changes in the function of property,
from a Marxist point of view. The fifty-page introduction
by O. Kahn-Freund to the English edition puts this classical
study into a comparative and contemporary perspective.
Richard Schlatter, Private Property, The History of an Idea
(New York, 1951), is a special study. Transactions of the
Third World Congress of Sociology, edited by the Interna-
tional Sociological Association (Amsterdam, 1956), has a
major part devoted to changes in property relationships,
with contributions from American, Dutch, German, and
Soviet authors.

WOLFGANG G. FRIEDMANN

[See also Class; Economic History; Equality; Ideology; In-
dividualism; Law, Ancient Roman, Natural; Marxism; So-
cialism; State; Utopia.]