Legal Concept of Property

[herdofturtles]

What is property?

Property isn’t a thing but a concept—it is the legal relationship among people and a res or an intangible subject.

It is a basic human urge to own things, though many societies regard the concept of ownership differently.

Earliest theories of private property:

the Roman occupation theory that stated he who first seized a thing, owns the thing. This only works in early society.

Philosophers of antiquity next came up with the natural rights theory, “property is a natural right, part of the law of nature.” They upheld that slaves were a natural right, too. Much of what we consider today natural was unnatural by past standards, and many rights we consider today will be considered unnatural in the future. Our concept of rights in this sense is essentially mutable.

Labour theory states that that the title of private property belongs to the one who toils to create it. Key argument point: nobody creates land; thus many philosophers argue that it is unjust to own land but just to own anything and everything else.

Social utility theory property is a natural right in the broad sense that all social growth is natural.

Roll of property in society

It is said that Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases. Legal theory usually follows after economic theory for this reason. Property law is the basis for all legal systems, and the legal theory says what property is in a society, not what or why it should be.

It is nothing but the basis of expectation: the expectation of deriving certain advantages from a thing which we are said to possess, and it is only metaphysical—a mere conception of the mind.


It’s fashionable to talk about a conflict between human rights and property rights. This makes sense only so long as people refer to plutocratic property, or impersonal corporate properties, because these are not in reality private properties. They are public properties privately controlled. But historically and to the majority of people, private property was the original means to attain freedom. These concepts limit the authority of kings and governments. The ruin of the German, Italian, and Russian middle class brought about the suppression of individual liberty in the 20th century because people no longer had the ability to act as free men and escape misery without the state’s aid. To receive aid, they had to act under the state’s interests.

A person’s belief that their home is their castle and that no king can enter it without their permission, and the ability to be able to look any man in the eye and tell him to go to hell, are the very essence of a free person’s way of life.




“Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain possession, would be entitled to tell the rest of the world which of them should enjoy it after him.”