Author is Senior lecturer at KCEF Law College Pulwama
Lessons From The Law
Property, an object of legal rights, which embraces possessions or wealth collectively, frequently with strong connotations of individual ownership. In law the term refers to the complex of jural relationships between and among persons with respect to things. The things may be tangible, such as land or goods, or intangible, such as stocks and bonds, a patent, or a copyright. Every known legal system has rules that deal with the relations among persons with respect to (at least) tangible things. The extraordinary diversity of the property systems of non-Western societies, however, suggests that any concept of property other than the descriptive one is dependent on the culture in which it is found. Because property law deals with the allocation, use, and transfer of wealth and objects of wealth, it must reflect the economy, family structure, and politics of the society in which it is found. Very few, if any, non-Western societies generalize about property in the way that Western legal systems do. What distinguishes the Western property system from the systems of most, if not all, other societies is that its category of private property is a default category. Western legal systems regard individual ownership as the norm, derogations from which must be explained. The legal concept of property in the West is characterized by a tendency to agglomerate in a single legal person, preferably the one who is currently in possession of the thing in question, the exclusive right to possess, privilege to use, and power to convey the thing. In classical Roman law (c. AD 1–250), the sum of rights, privileges, and powers that a legal person could have in a thing was called dominium, or proprietas (ownership). The classical Roman jurists do not state that their system tends to ascribe proprietas to the current possessor of the thing but that it did so is clear enough. Once the Roman system had identified the proprietaries (the owner), it was loath to let him convey anything less than all the rights, privileges, and powers that he had in the thing. The medieval English legal system similarly showed the tendency at critical points to agglomerate property rights in a single individual. A notion of property in land emerged at the end of the 12th century in England from a mass of partly discretionary, partly customary, feudal rights and obligations. What began as essentially an appellate jurisdiction, offered by the king in his court to ensure that a feudal lord did right by his men, ended with the free tenant being the owner of the land, in a quite modern sense, with the lord’s rights limited to receipt of money payments. The fundamental tendency in Western property law to agglomerate property rights in a single individual is probably not the product of the influence of a particular philosophical idea or the dominance of one social group over another or even of a balancing of social interests. As the need arose for a category to describe the sum of the rights, privileges, and powers that an individual could have with respect to a thing, the Romans, followed by the English, chose a noun derived from an adjective that means “own.” The category at once described the concept and also the tendency. As time went on, the tendency took on an independent life. Western law excluded from the category “property” certain rights, privileges, and powers with respect to a thing because they existed in someone other than the property holder. In modern legal systems, though not in the Roman, property came to represent one of the rights of the individual against the state, perhaps originally because property had come to rest in the freeholder and not in his lord, and the king was the lord of all. In Western law today, most tangible things may be the object of property, although certain kinds of natural resources, such as wild animals, water, and minerals, may be the object of special rules, particularly as to how they are to be acquired. Because Western law gives great emphasis to the concept of possession, it has had considerable difficulty in making intangible things the object of property. Some Western legal systems still deny the possibility of property in intangibles. In all Western legal systems, however, the great increase of wealth in the form of intangibles (stocks, bonds, bank accounts) has meant that property or property-like treatment must be given to such intangibles. Certain government-created rights such as patents and copyrights have traditionally been treated as property. Others, such as the right to receive social-insurance payments, have not normally been so treated, although there appears to be some tendency to treat these rights as property also. (This is the “new property” of recent writing.)
