THEORIES OF PROPERTY

-Adarsh Adhikary, National Law College

 Meaning of Property:
• The word 'property' is derived from the Latin term 'properietate'
and the French equivalent 'proprius' meaning a thing owned.
Property definition describes it as anything over which a
business or a person has lawful rights. They may have some
enforceable privileges over the items. Most of the properties
contain present or future monetary value and that is why they
are considered assets.
Theories of Property
1)Natural Law Theory
Supporters; Grotius, Pufendorf, Locke, Blackstone, etc.

-According to this theory, property rights are derived from natural law and are
therefore morally justified. According to this theory, individuals have a natural
right to own and control property, and these rights are not dependent on the laws
or institutions of any particular society.
- 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)Labor Theory/ Positive Theory
• Supporters; Herbert Spencer, John Locke, etc.

• This theory holds that property rights are acquired through the exertion of
labor, and are therefore morally justified. According to this theory, an
individual's labor creates value and this value justifies their ownership of
property.
• According to Locke, an individual precisely a man own literally everything that
he produces. In this theory, according to him, man will put employ all the
possible natural resources that were unused along with his labour i.e., hard
work to produce something out of it. In that way, he deserves the output that
he has produced using struggle and toil.
Herbert Spencer, the architect of positive theory also have argued that
the person who produces a thing or brings it into existence is the owner of it.
 3) Historical Theory
• Sir Henry Maine was the ardent supporter of this theory about concept of
property.
• According to this theory, the concept of private property has rooted out from the
existing concept of joint property held by the whole society or members of the
particular social group for collective good/enjoyment of everyone in it. Such
development have said to be taken place in different stages over a period of time.
• First Stage: In this stage, people tend to take natural possession of the property and
also exercise control over it (without any law or existence of state).
• Second Stage: In this particular stage, the conception of juristic possession has
developed i.e., possession in fact & law.
• Third Stage: The present form of legal ownership has taken its shape in this stage.
Therefore, the concept of protection of individual's property rights by state has
developed.
 4) Metaphysical Theory
• The Metaphysical Theory was advocated by German philosophers
Immanuel Kant and Georg Wilhelm Friedrich Hegel.
• Kant has argued that a person rightfully becomes the owner of a particular
thing when he is connected with such thing, and if that thing is used without
the consent of its owner, it hurts/damages/injures the owner. The theory of
Kant has to be perceived with realities where it manifests a truism that any
person who relies on the property of others like a parasite will/may not be
able to live a free & happy life.

• 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." For Hegel, property is the minimal condition for
individuals to know themselves as free.
• 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.
5) The psychological theory
• The propounder of this theory is Jeremy 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.
 6) Sociological Theory
• The principal propunders of this theory are believed to be Duguit,
Karl Marx, Harold Laski, Jenks, etc.

• 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."
7) State Theory

• The primary supporter of this theory was the renowned Genevan

philosopher and writer Jean Jacques Rousseau.

• This theory propagates that the concept of property is something that was
created by the state. The vocalists of this theory state that law and property
have born together and will die together. They argues that the existence of
the concept of property without law is impossible. In other words, the property
came into existence when the laws were framed by the state.
THE END!