Theories of Property | Property Law

                    The concept of property occupies an important place in human life because it is practically impossible to live without the use of material object which constitutes the subject matter of property.  Property may be classified into- corporeal and incorporeal property, movable and immovable property, real and personal property, public and private property. There are four important modes of acquisition of property namely, possession, prescription, agreement, inheritance.
      There are Several theories about the origin of the Property. But none of them is perfect. Each theory has its own merits and demerits. There are different opinions and different theories among  the jurisprudents about the definition of property which differs from theory to theory

I) Meaning and definition of property -

        The word 'property' is derived from the Latin term 'properietate' and the French equivalent 'proprius' which means a thing owned. The concept of property and ownership are very closely related to each other. There can be no property without ownership and ownership without property. There are two Kinds of Property namely, Corporeal and Incorporeal Property. The concept of property occupies an important place human life because it is impossible to live without property. There are four modes of acquisition of property.

II) Kinds of property -

         Property is essentially of two kinds Corporeal Property and Incorporeal Property. Corporeal Property can be further divided into Movable and Immovable Property and real and personal property. Incorporeal property is of two kinds-in re propria and rights in re aliena or encumbrances.

See in Detail ===>> Kinds of Property 

III) Modes of acquisition of property -

         According to Sir John Salmond, there are four kinds of acquisition of property those are possession, prescription, agreement and inheritance.

See in Detail ===>> Modes of acquisition of property

IV) Theories of property -

    Jurists have differed in their views regarding the origin of the property. Many theories have been put forward to explain the origin of property and give justification.  The following are theories of property


(1) Natural law theory - 

            Grotius, Pufendorf, Locke and Blackstone are supporters of this Theory.  According to the natural law theory, Property is based on the principle of natural reason derived from the nature of things. According to Grotius, all things originally were without an owner and whosoever captured them or occupied them, became their owners. Locke says: "Every man has a property in his own person, he has right to preserve his property, that is, his life, liberty and estate."According to Pufendorf, originally, all things belonged to the people as a whole.

Criticism -

The natural law theory of property has been criticized by Sir Henry Maine and Bentham. According to them possession does not give rise to title nor the property is originated by the first occupation of on ownerless thing but it is a creation of law. He does not believe in the existence of property without the existence of the law.



2) The labor theory/ positive theory

      The labor theory of property is also sometimes called as the positive theory. Spencer was propounder of the positive theory. According to this theory, a thing (res)  is the property of a person who produces it or brings it into existence.  However,  the labor theory has been criticized by Professor Laski key on the ground that labor does not produce the property, it is only a means to earn property. This theory has lost significance in modern times because it has been shown that there may be many situations when property can be acquired without labor, for example, property obtained by inheritance or under a will.


3) The Metaphysical theory

        The metaphysical theory was propounded by Kant and Hegel. According to Kant, "A thing is rightfully mine when I am so connected with it that anyone who uses it without my consent does me an injury." According to Hegel, "property is the objective manifestation of the personality of an individual. In other words property in an object on which person has liberty to direct his will."
        Kant observed that law of property does not merely seek to protect possession where there is an actual physical relation between the possessor and the object, but it goes beyond and considers the personal will of the individual more important in the concept of the property.
       This theory has been criticized on the ground that it is a little concerned with realities and is based on theoretical assumptions.


4) The historical theory - 

     The propounder of historical theory is Bentham.  Henry Maine was the main supporter of the historical theory of the origin of property. According to the historical theory, private property had a slow and steady growth. It has grown out of the collective group or joint property. There were many stages in the growth of individual property. The first stage was that of natural possession which existed independently of the law or state.  The second stage was juristic possession and the last stage of development was that of ownership.


5) The psychological theory 

   The propounder of this theory is Bentham.. According to this theory, property came into existence on account of acquisitive tendency of human beings.Every individual desires to own things and that brings into existance property.  Bentham pointed out that property is altogether a conception of mind. There is no image,  no visible lineament which can portray the relation that constitutes property. It belongs not to Physics but to metaphysics.


6) The sociological theory - 

       The sociological theory was propounded by Duiguit, Laski, Karl Marx. According to the Sociological Theory, property should not be considered in terms of private rights but should be considered in terms of social functions. Property is an institution which secures a maximum of interest and satisfies the maximum of wants.
     According to Laski, "property is a social fact like any other and it is the character of social facts to alter. It has assumed the most varied aspects and it is capable of yet further changes.
     According to Jenks, " The unrestricted right to use,  neglect or misuse his property can no longer be granted to any individual and the right of property should be made comfortable to rules of equity and reason."


8) The theory that property is the creation of the state

       According to this theory;  the origin of property is to be traced back to the origin of law and the state. The supporter of this theory observed that property and law born together and would die together.  In other words, the property came into existence when the laws were framed by the state.
 Rousseau is the main supporter of this theory. He asserted that property was the creation of the state.


See also...

Lease: Meaning, Definition and Essentials of the Valid Lease 

Property: Meaning Definitions and Modes of Acquisition of Property | Law of Property