PROPERTY
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PROPERTY
the family as a whole. Not all collective property
is public property. The property of a community
remains private as long as that community is able
to exclude outsiders from participating in its enjoy-
ment. But when a community can no longer pre-
vent outsiders from settling down in its midst and,
like the rest, sharing in its property, that property
ceases to be private. If we consider the object
of ownership, property may be movable or immovable.
Immovable property consists in land (real estate), and
in everything so attached to the land that, as a rule, it
cannot be transferred from one place to another with-
out undergoing a change in its nature. All the rest
is movable property. Lastly, the purpose distin-
guishes property into goods of consumption and goods
of production, according as the goods are directly
intended either for production, i. e. for producing
new goods, or for consumption.
III. Possession differs essentially from property. At times, possession denotes the thing possessed, but generally it means the state of possessing something. He possesses a thing who has actual control over it and intends to keep it. Possession may be unjust, as is the case with the thief who has knowingly taken the property of another. Since such possession is manifestly unjust, it gives the possessor no right whatever. On the other hand, it may happen that one is bona fide possessor of another's property. Such possession implies certain rights. It is incum- bent on the owner to prove that the thing does not belong to the possessor. If he is unable to furnish this evidence, the law protects the actual possessor of the thing under dispute. The basic reason why possession must not be neglected when ownership is disputed is that under normal conditions posses- sion is the result of ownership. For, generally speaking, the possessor is the owner of a thing. This being the normal state of affairs, the law favours the presumption that the actual possessor is also the legal possessor and consequently holds that nobody has the right to evict him unless the illegality be proved. He who seeks to overturn existing conditions as being unjust must bear the burden of proof. Should this principle be denied, the security of prop- erty would be greatly endangered.
IV. Opponents of Private Property. — The pres- ent order of society is largely based on the private property of individuals, families, and communities. Now there are many communists and socialists who condemn this kind of ownership as unjust and in- jurious, and who aim at abolishing either all private property or at least the private ownership of produc- tive goods, which they wish to replace by a com- munity of goods. Their intention may be good, but it proceeds from a total misunderstanding of human nature as it is, and, if carried out, would re- sult in disastrous failure (cf. Communism and Socialism). The so-called agrarian socialists, among whom must be numbered the single-taxists, do not propose to abolish private ownership of all productive goods, but maintain only that the land with the nat- ural bounties which it holds out to mankind es- sentially belongs to the whole nation. As a logical conclusion they propose that ground rent be confis- cated for the community. This theory, too, starts from false premises and arrives at conclusions which are impracticable. (See Agrarianism.)
V. Insufficient Justification of Private Prop- erty. — Outside the communistic and socialistic circles all concede that private property is justified; but in regard to its foundation opinions differ widely. Some derive the justice of private property from personality (personality theory). They look upon private property as a necessary supplement and ex- pansion of personality. Thus H. Ahrens ("Natur- recht", 6th ed., 1871, §68) thinks that the "in- dividuality of every human mind, in choosing and
attaining its ends, requires property, i. e. the free
contract and disposal of holdings, whereby the entire
personality is brought into action. Similar views
are held by Bluntschli, Stable, and others. This
theory admits of a correct explanation, but is in
itself too indefinite and vague. If it is understood
to mean only that, as a rule, private property is
necessary for the free development of the human
personality and for the accomplishment of its tasks,
then it is correct, as will appear in the course of our
discussion. But if these theorists remain within the
pure notion of personality, then they cannot derive
from it the necessity of private property, at least of
productive goods or land. At most they might prove
that everybody is entitled to the necessary means of
subsistence. But this is possible without private
property strictly so called. Those who are cither
voluntarily or involuntarily poor and live at the ex-
pense of others possess no property and yet do not
cease to be persons. Though the children of a family
are without property during the lifetime of their
parents, still they are true persons. Others derive
private property from a primitive contract, express
or tacit (contract theory), as Grotius (De jure
belli et pacis, II, c. 2, § 2), Pufendorf, and others.
This theory is founded on the supposition, which has
never been and never can be proved, that such a
contract ever has or must have taken place. And
even supposing the contract was actually made,
what obliges us to-day to abide by it? To this ques-
tion the theory is unable to give a satisfactory answer.
Others again derive the justice of private property from the laws of the State (legal theory). The first to advance this hypothesis was Hobbes (Leviathan, c. 2). He considers the laws of the State as the foun- tain-head of all the rights which the subjects have, and consequently also as the source of private owner- ship. The same view is taken by Montes- quieu, Trendelenburg, Wagner, and others, as far as ownership is concerned. Kant (Rechtslehre, p. 1, §§ 8, 9) grants indeed a provisory proprietorship in the condition of nature prior to the formation of the State; but definite and peremptory ownership arises only through the civil laws and under the pro- tection of the coercive power of Government. Most of the partisans of this theory, like Hobbes, proceed from the wrong supposition that there is no natural right properly so called, but that every genuine right is a concession of the civil power. Besides, their appreciation of actual facts is superficial. It is true that the laws everywhere protect private property. But why? A fact, like private property, which we meet in one form or another with all nations, ancient or modern, cannot have its last and true reason in the civil laws which vary with time and clime. A uni- versal, constant etfect supposes a universal, constant cause, and the civil laws cannot be this cause. If they were the only basis of private property, then we might abolish it by a new law and introduce commu- nism. But this is impossible. Just as the individual and the family existed prior to the State, so the rights necessary for both, to which belongs the right of property, existed prior to the State. It is the duty of the State to bring these rights into harmony with the interests of the community at large and to watch over them, but it docs not create them.
John Locke saw the real foundation of private prop- erty in the right which every man has to the prod- ucts of his labour (labour theory) . This theory was loudly applauded by the political economists, es- pecially by Adam Smith, Ricardo, Say, and others. But it is untenable. There is no doubt that labour is a powerful factor in the acquisition of property, but the right to the products of one's labour cannot be the ultimate source and basis of the right of property. The labourer can call the product of hia work his own only when the material on which he
