Property

History of the Contemporary Notion of Property

The history of the contemporary notion of property can be divided into three stages: (1) rise, (2) triumph, and (3) fall. The emergence of the notion of property can be traced back to the Second Scholastic, which took place during the 17th century following and commenting on the Renaissance. Its final definition as the natural, absolute, and exclusive right of a person over a material thing was formulated by modern natural law theorists, especially by Thomas Hobbes and Samuel Pufendorf. A more legal, less philosophical genealogy could recount the slow rejection of the divided-ownership theory (which distinguishes between direct and eminent owners) and would put forward the ideas of French jurists such as Francois Hotman, Jean Donneau, or Charles Dumoulin. In any case, the idea of property as an absolute right nourished physiocratic writings and, at the end of the 18th century, became a truism of legal thinking, made famous by Robert-Joseph Pothier or William Blackstone's well-known phrase in Book 2 of the Commentaries on the Laws of England: “the right of property … that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”

An individual's subjective property rights are acknowledged by the Fifth Amendment of the U.S. Bill of Rights (“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”), by Article 17 of the Declaration of Human Rights of 1789 (“Since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it, and just and prior indemnity has been paid”), and by Article 544 of the Napoleonic Code (“Property is the right to enjoy and dispose of things in the most absolute way, provided this usage is not prohibited by laws or regulations”). In 19th-century Europe, Article 544 became the symbol of a unitary and centralized conception of property. After 1804, the [Page 2139]consensus about property, at least in continental law, was broad enough to raise this notion to the level of a legal dogma. On that basis, a general theory of property was progressively constructed, defining property as a subjective, unitary, complete, and perpetual right over material goods that gives the owner, directly and without any personal mediation, the power to exclude anyone else and to use those things both physically and legally. Moreover, this dogmatic consensus was coupled with a very large political consensus about the legitimacy of the institution of property.

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