of

Theo ries Property

Jurists have differed in their_ vie:vs re_gardi ng the origin of property. !hr.:,
have advan ced their own theories 111 this regar d. None of them, how !
seem s to be wholl y correct but there is some truth 1n . each one f h eve:r•
. are d iscuss o t em. Th
th eones ed below :- e½

1. Na~ural law Theo ry.-T his th_eory is base~ on the ~rinc iple of natural
reaso n deriv ed from the natur e of things. Acco rding to this theory, properh
was first acqui red by occupation of an owne rless object2 as a result of indjvidu:i
labou r. Groti us, Pufendrof, Locke and Blackstone have s~pp orted this theory.
Kant also upho lds this theor y in his classic work Philosophy of Law. As
point ed out by Blackstone, "by the law of nature and reason, he who first began
to use a thing acqui red therein a kind of trans_ient prope rty that lasted so long
as he was using it and no longer". However, as the popu lation increased, the
mean ing of prope rty was exten ded not to the inord inate use only but to the
subst ance of thing to be used . Thus the theory of occup ancy was the foundation
of all prope rty. ·
The natur al theor y of prope rty has been criticised by Sir Henr y Maine and
Benth am. Acco rding to Henr y Maine, it is erroneous to think that possession
gives rise to title 3 for there is no reasonable groun d to suppo rt this contention.
Bent ham holds th at prope rty has not originated by fi rst occupation of an
o\ivnerless thing, but it is a creation of law. He does not believe in the existence
of prop erty withou t the existence of law.
2. Labo ur Theo ry.- This theory primarily believes that prope rty can be
claim ed on the exclu sive basis of one's work, which produ ced that prope rty. It
recog n ises the role of labou r for adequ ate rewar ds. When a perso n acquires
prop erty, he is entitl ed to ho)d it exclusively .
 4 7tj
l'IH >l' f '. l<TY

O f the person who

/\ l'c111ding lo lhiH tlwor y, ,, th111 g .
(n',, ) jq th e prope rt y ·,;cic;cd by
. I . . . . I. . h i s b<'cn e n . on ly a
,ro d1H'l'l'l 11 or >rt11g!-I 11 11110 l'X111 lt•nn·. l low(' vcr, t 1I ~ v 1t •w ' · ·t s
l 1rop<'rty 1 1•
11.,rold l.n :1 k 1 (>11 I IIt' grn1111d th i1t labo ur do<!~ not pro d un• f · '. ba ';('d on
15
111 , . ,11, ~ Ill r,H11 pro1wrty . No t.,hl y, llH' Mt1rxb
1 t th eo ry o f prope rt y as los t
1 h 1s theo ry 11 ·
pn•cln111i11.111l·t• nf I.1bo 11r in eco nomy of il country . he man y
s t\'lllf ir,11H 't' i11 rnnd crn li111c bl'r.i wic it hac; been show n th at the re may p~rt y
· ,• a pro '·
:4 i111,1ti011 ~ wht•11 propt•rl y ca n be acqu ired wit ho ut labou r, e.,., .,
n bl,1inl'd by inhcritanc<' or und er n will.
. h anci ent tex ts of
Tht' h1bour theory of property find s recognition even int e . d the
· i u .iw commentator s nota bly, Ya1navalkya w O
I . h und e r 11ne
th~ 1 lmc h. Thus
principle that a person's wages will be according to work done by imk · but
. h . h underta en
when wages ha ve been f1xed for a particular tas k, w JC was Id be
not accomplished due to illness or other impediments, then wa_ges woumad e
paid in proportion to the work done. Sjmilarly, when more profits were liall
. . k th the master s
by reason of special knowledge or skill of the wor er, en . d the
pay him an amount exceeding the fixed wages.2 Katyayna recognize an
Stridhana property of woman and pointed out that wealth earned by a ;om 5
by application of her intellectual ability or business skill or crafts mans 3
1
P w:. 1
t
her own property over which she had exclusive right of disposal. The pr~
earned by her in business, trade or employment who also her excluSIVe
sf ridhana property.
The labour theory of property is also sometimes called as the positive
theory. It was propow1.ded by Spencer who founded it on the f~damental law of
equal freedom of individuaL He asserted that property is the res~lt of
individual labour and therefore, no one has a moral right to property whKh he
has not acquired by his personal labour.
3. Metaphysical Theory.-This theory was propounded by Hege l and
Kant. According to Hegel, "property is the objective manifestation of th e
personality of an individual". In other words, property is the object on which a
person has the Jiberty to direct his will. Kant has also supported metaphys ical
theory of property and justified its existence and need for protection. He
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 it and considers personal will of the individual more important in
the concept of property. This theory has been criticised on the ground that it is
little concerned with realities and is based on theoretical assumptions.
4. Historical Theory.-This theory believes that private p roperty has its
growth in three distinct stages. In the ffrst stage, a tendency developed an1ong
people to take things into natural possession and, exercise control ove r then1
independently of the law or the State. In the second stage, the juristic
\ conception of possession gradually developed which meant possession in fact as
 CE AND LEGAL THEORY
JURISPR UDEN
476
. third and the last s tage,_ th~re ~a~ deveJo
well as m law. In the I 1 al conception having its ongm in 1awPrnel1t
. h' his pure y a eg I d . . 1h Of
ownersh 1p w ic ty exclusive contro an en1oyment of e ht"'
guarantees the owner of proper , ProPer~
owned by him. •
in supporter of the historical theory of th
H nry Maine was th e ma 11 b I d e Ori
e d tl at property origina y e onge not to indiv·d &i~
of property. He obdsefrve ·1· 1 but to large societies composed on the pat/1 UaJs
ot even to isolate ami ies, t d· · arch '
n later stage that collective proper y ISmtegrated a/
pattern. It was at a . t xistence.1 Roscoe Pound al and
individual rights of property came m o e ro ert which sub so agrees
that the earliest form ~f property was Jr~~~l{ the !oncept of i~~~u_entJy
disintegrated into family property ~n . . Y . IV1duaJ
property evolved. The 11oted Italian 1unst Miraglia has also supported the
historical theory of property.
5. Psychological Theory.-According to this theory, pro~erty came into
existence on account of the acquisitive tendency ~f human bemgs. Every one
desires to own things and keep them in his possess10n and control_. Bentham has
supported this theory of property and pointed out that pr~perty is a~together a
conception of mind. It is nothing more than an expectatwn to derive certain
advantages from the object according to one's capacity. Roscoe Pound also
supports Bentham and holds that the sole basis of conception of property is the
acquisitive instinct of individual which motivates him to assert his claim over
ob_jects in his possession and control.
Th is theory has been criticised for being Maine's imaginative
reconstruction based on Indian village communities and certain local customs
prevailing in ancient Indian villages and, therefore, it lacks universal
application.
6. Functional Theory.-The functional theory considers property as a
social interest for promoting general security and protection of individual
interests in personality, domestic relations and in subsistence. As pointed out by
Roscoe Pound, interests of personality like security of one's physical being,
privacy, h onour, reputation, etc. can be realized only through some access to
property. Interests in domestic relations are protected when the interests of
parents, chHdren, husband, wives and other dependents are well safeguarded
by support and p rotection of the family. Interests of subsistence include right to
property, economic advantages, freedom of association and availability of
employment-opportunities.2
As rightly suggested by Jenks the concept of property should not only be (
confined to private rights but it should be considered as a socia l institution v
securing maximum interests of the society. No one can be allowed an unrestricted e
use of his property to the detrimen t of others. In his opinion, the use of property s,
should conform to the rules of reason and welfare of the community. The b
 l'fl.CJ l'l~kT'I

fun ctio nal t_hc~ ry justifies acq uisHion of propc,rty

by J,,111 ~r,d u ,d1 (11,J, 1J~J
efforts. Its d1st nbu hon , however, 8 huu ld be un ,~quiti:lbJe
bai/ h.
Laski also sup por ts the fu ncli ona I thcCJry uf prvp f~
rt1/· 1f~ ,,t,~ :t•i i:~:~,
"pro pert y is a social fa ct 1ike any othe r and H jg the
charar ter <Jf ;~c.,rJ ~I fo e.,~, t:J
keep on_ cha ngin g. Prop erty , ther efore, has a&iju med
v61 rfod a~pf~.h ;i; rtrJ J~
furt her habl e to chan ges wHh the chan ging norm g of
the 'ffJ<_i(,,ty '',
. The ~oots of prop erty as a soci al jm,titution ar~
traceabJ B in th-'~ ?Jr .,_:'-:ti}
Hmc lu phil osop hy of dharma whic h emphasi zed cm
nd
ju~t rd ~t jv.n~ jn e'-</t,r:r,1;
a prop ~rty mat ters and not to encr oach upon the rjgh t
w Wet.lJth r,f <A hf.,-r·.,, ;,£
was t~e ctuty of ~he Karla of the famj]y to m~intaj n
all th~ farrdJJ rnt.:rnbF;, .,
ensu nng thei r soc1al secu rity and enjoyme nt of prop erty
.1
_The . cu st0ms and prac tices thro ugh which prop erty
cCJ1J Jd be faw!uJJy
acqu ired 1ncl~ded don atio ~s, gifts, pay men t of price jn
case of pvrcha~ , ~<=1~u:';
of p~o_p_erty 1n war , lend ing of m one y on inte rest,
wages, etc, ~ ny ~n~ .,
acqu isiti on of prop erty was strictly proh jbjted and cons
ider~d as "' :;Jn ful ~ci,
The join t fam ily syst em in anci ent India insp fred mem
be-r s of a farniJJ
with . unit y of min d and hea rt with the resu lt p
rope rty ri ght ~'>:-,UrrJ(;d i
func tion al role of service to the communHy as a whole.

The cent ral prin cip le und erlying prop erty acguisib on
fNag socio J '>~cu rit/
and coll ectiv ely of own ersh ip . Mut ual trus t, good fa
jth and resp ect for otht:~:>
p rope rty righ t, refra ined peo ple from in du lgin g in unju
st enri chm ent fur thE=t r
self ish end s.

7. Theory that Property is the creation of Stat e.-A

ccor ding to this theor y
the orig in of p rope rty is to be traced back to the orig
in of law and the Stat e.
Jenk s obse rved that prop erty and law wer e born
toge ther and 1'vou ld d ie
toge ther. This in othe r wor ds, mea ns that prop er ty
came into exis tence when
law s wer e fram ed by the Stat e. In this cont ext Rou ssea
u obse rved , "it was to
convert poss ession into p rop erty and usur pati on into
a righ t that Ja w and State
wer e foun ded ". He asse rted that p roperty was the crea
tion of the State and it
is noth ing but a syst ema tic expr essi on of deg rees and
fonn s of con trol use and
enjo yme nt of thin gs by pers ons that are recognis ed and
p rotected by Jav,;. The re
is, how ever , littl e tru th in this theo ry beca use in
fact both the Stat e an d
p rope rty hav e thei r orig in in the socio-econom ic forces
ther efor e, one cann ot be
the sour ce of orig in of the othe r.