Property

PROPERTY. - A juridical term indicating the relationship of eminent sovereignty or dominion that a person (individual or collective, private or public) comes to acquire, by virtue of legitimate titles, over a determined thing, such as to be able to dispose of it freely in an exclusive manner, for his own good coordinated with the general good.

It is distinguished from simple possession (v.), which expresses only the fact of the current availability of the object; and from usufruct, which gives the right to the simple enjoyment of the fruits of a determined thing, excluding that of the ownership of the thing itself.

I. NOTION AND GENERAL PRINCIPLES

The term p. is often replaced by the term dominium, whose use is in fact earlier (along with mancipium) in Roman law. The right of p. is indeed a species of the right of dominium which, insofar as it is of a person over other persons, is ius iurisdictionis, whereas if it is of a person over a thing it takes the name of ius proprietatis. A fundamental principle of Christian thought is that no person can be reduced to a thing, that is, to a mere instrument of another person, and therefore cannot be the object of the right of p. (v. SCHIAVITU).

As dominium, the right of p. grants a faculty over the thing that is in itself indeterminate and indefinable, its concrete determination depending on changing economic-social circumstances: for which reason it appears historically limited and circumscribed in various ways according to its insertion into a more or less organized social complex. Hence the necessity of a regime of p. in which the right of p. comes to be concretized according to the infinitely variable economic-social movement. According to the principle of the elasticity of dominium, the right of p. expands more or less according to the greater or lesser compression it undergoes from competing private and public rights. This is expressed by the definitions of the right of p. deriving from the Roman legal tradition: ius ac potestas in re propria tum utendi tum abutendi quatenus iure civili permittitur; ius de re corporali perfecte disponendi nisi lex prohibet. Others prefer the definition "the most general lordship over the thing, whether in act or at least in potency" (Bonfante).

These definitions are nevertheless incomplete, because they do not indicate the final cause of p., which, having in itself no absolute value, but one of pure instrumentality for individual and social human perfection, must be defined only in the light of this finality.

Contemporary sociology concerns itself principally with the regime of p. in order to determine the social-economic laws of the various forms of p. in the successive phases of culture and in the different historical periods. In this analysis, evolutionist and sociological positivism excludes any justification for the natural right of p., considered as a mere product of egoistic instincts or of social pressures: hence its preoccupation with studying above all primitive social regimes, with the preconceived intention of demonstrating the absence in them of any form of private appropriation (cf. E. D. Laveley, De la propriété et de ses formes primitives, 4th ed., Paris 1891). The followers of historical and dialectical materialism (v.) make the historical development of the regime of p. the very essence of social becoming founded on class struggle: from a primitive communism due to a deficiency of economic needs, humanity tends toward the communism of the superabundance of goods, realized by a perfectly organized society (cf. F. Engels, Der Ursprung der Familie, des Privateigentums und des Staats, Zurich 1884). But an objective study of cultural and historical phases, while it shows a continuous variability of the regime of p. according to the diversity of times and places, also reveals the constant fact of appropriation as an inviolable and exclusive right, claimed by individuals, families and groups, and not only for economic reasons, but above all as an assurance of free activity and free development and as an affirmation of power. Even in primitive economy private p. is always found, surrounded by an intrinsically sacred respect (cf. R. Lowe, Primitive society, New York 1920; M. Mauss, Traité d'ethnographie, Paris 1947 [v. infra, n. V]). Three types of p. have constantly asserted themselves: the familial, closely bound to the progress of individuals; the public, concerning the life of the whole social group both internally and in its relations with other groups; the religious, directed to the needs of worship. If in certain forms of culture (patriarchal period) the subject of the three fundamental appropriations may materially have been found united in the same person, formally the three types of appropriation have always remained well distinct, as the expression of natural needs toward the family, the State and religion, which represent the pillars of human sociality (cf. L. Sturzo, La société, sua natura e sue leggi, Bergamo 1949). The perennial struggles that appropriation has provoked in history indicate the double value of power and of liberty that the right of p. has in social life, as an instrument of liberation and of affirmation of one's own personality, of which humanity has historically become conscious.

The problem, therefore, of the right of p. cannot be resolved solely in the light of economic considerations, but according to the value attributed to individuals, to society and to religion. There thus come to be three fundamental philosophical conceptions of the right of p.: the individualistic, the collectivistic and the personalistic, according as man is conceived as essentially an atomistic individual, or as entirely subordinated to social reality, or finally as a person realizing his human value in social communion.

II. INDIVIDUALISTIC CONCEPTION OF THE RIGHT OF PROPERTY

Starting from the absoluteness of the egoistic individual, from the optimism of free initiative, from the fundamental essentiality of economic activity, the individualistic conception sees in the right of property a faculty inherent in the very essence of the individual, as an expression of unlimited freedom, and having as its end solely the particular interest of the individual. It is proper to economic liberalism (Manchester school) and is founded on the doctrines of philosophical-social liberalism (v.), which elaborated in a strictly individualistic sense the juridical formulation of the institution of private property, given by Roman law and deepened by the natural-law theorists.

The Roman juridical institution of private property had arisen as a defense of the institution of the family, considered as an inviolable social-economic unit: everything that was acquired by the children was always the property of the pater-familias. During the Empire the social disintegration of the family and the growth of economic capitalism led to a more strictly individualistic regime, but together with greater state limitations of its primitive absoluteness and perpetuity, in reference to the more complex higher exigencies of the public good and according to the principle expedit rei publicae ne quis re sua male utatur (I, 8, 2). There are titles of private appropriation, anterior to the civil law, dictated by the ius gentium, as the concrete universal expression of natural law: they are founded on the occupatio rei nullius with the intention of appropriation. The title of labor is also recognized, but in a subordinate way, in the modes of acquisition of accessio and specificatio (Gaius, Inst., II, 65 § 2, 1).

The definitions of the right of property given by the glossators and commentators of Roman law (Bartolus, Hotman), in the light of the absoluteness and perpetuity of dominion and of the necessary limitation deriving from associated life, were taken up by the natural-law theorists, who posed the problem of the foundation and justification of private property, especially against monarchical absolutism. By natural law all things are at the disposal of all and of each (ius omnium in omnibus); but the social contract, giving rise to associated life, establishes the exigency of the private appropriation of certain goods, founded on occupation and on a mutual agreement (Grotius, De iure pacis et belli, II, ch. 2), and together the necessity of the civil law that guarantees it.

With Locke the liberal conception of individual property begins. The right of property is by him intimately connected with that of individual freedom which, requiring the right of labor, as an expression of the free disposal of oneself, also establishes the right of the absolute appropriation of the fruits of one's own activity. Material goods, which in themselves are at the disposal of all, are appropriated by the individual only insofar as he impregnates them with his labor and therefore with his personality (Two treatises on government, London 1690, II, ch. 3), giving them that character of absolute inviolability that it has by nature. Wherefore «by property one must understand that which men have both over their persons and over their goods» (ibid., ch. 2). Under the influence of the Enlightenment property is considered as an integral element of the liberal triad of the fundamental rights of man: liberty, fraternity, equality. But the utilitarian individualism that is at its base, [sic] rendered the principle of fraternity, and causes the principle of equality not to involve a state intervention to determine a social-economic equity, but a simple political-juridical guarantee of the free appropriation and disposal of what has been appropriated: therefore free economic competition and conservatism against the propertyless classes. The Napoleonic code defines property: le droit de jouir et de disposer des choses de la manière la plus absolue (art. 544). One even comes to admit the faculty of destroying what is one's own, without taking into account the damage deriving to the community (J. Pothier, Traité de la propriété, Paris 1831, p. 4).

Under the aegis of the liberal codes, economic liberalism has given the maximum development to present-day capitalism, characterized by the exploitation of the holders of capital toward the workers and by the violent economic struggle determining the destruction of small and medium property in favor of a few monopolizers, who under the guise of anonymity control all world economic life. The result has been a totalitarian economic despotism that has determined the most serious reactions in the political-social field.

The voice of the Church has strongly condemned the individualistic conception, for its anti-social nature. Private property must be defended as an exigency of nature; but it has a structure and social function, which excludes all monopolism and imposes such a distribution of the world's means of production, such a remuneration of workers, as to facilitate for all access to property, as a guarantee of the free social development of individuals, of families, of free associations, of States, of the whole human collectivity and of the Church. Free initiative is fundamental; and the private property that derives from it is necessary by nature: but equally necessary by nature is that all economic activity be guided by right reason, and therefore by morality and by state intervention, as a direction toward the common good. The State cannot abolish free initiative and private property; but it must bring it about that all are truly free, and all can enjoy economic goods and have access to property, as an effective guarantee, willed by nature, for the fullness of their human life

(cf. Pius XI, Quadragesimo anno, nos. 19, 25, 37, 41, 42, 43; Pius XII, Radiomessaggio natal., 1941, no. 6; Radiomessaggio, Sept. 1, 1944, no. 11).

III. COLLECTIVIST CONCEPTION

It calls for the destruction of private property in favor of collective public property. Historically it first presented itself under the aspect of negative communism, and only recently as positive communism.

Negative communism derives from an ethical-ascetic attitude, which imposes contempt for material goods in favor of and in the service of higher goods: in the service of the ideal unity of the State, representing the supreme human good, says Platonism (Plato, Respubl., 462 C); in the service of universal brotherhood realizing in charity the supreme divine good, says the Christian asceticism of the Fathers (St. Basil, St. John Chrysostom, St. Ambrose, St. Augustine). While the Platonic conceptions of the ideal city, taken up again also in the 17th century, remained on the plane of pure utopia, Christian asceticism sought partial concrete applications in certain primitive communities of the faithful (Jerusalem, Alexandria), in monasteries, in the Mendicant Orders, and in any case served to orient minds toward a communitarian sharing in the use of one's own goods. Certain medieval heretical sects (Albigensians, Cathars, Moravian Brethren, etc.) not only denied the right of ecclesiastical property, but went so far as apocalyptic forms of communism, setting off antisocial movements against the very institution of the family and of the State.

Positive communism arose in the 19th century, determined by a humanistic-materialistic conception that makes economic goods the fundamental value of man, and made possible by the modern conception of the totalitarian State. It presents itself under two contrasting ideologies, having in common the reaction against individualism (v.) and private capitalism and the integral absorption of private forces into the life of the whole State. To the economic totalitarianism of capitalism it opposes a State totalitarianism understood either as political power or as a unitary economic enterprise.

The State, as totalitarian political power, derives from the very liberal conception of the absolute State (v. ROUSSEAU, 1-4), but above all from the Hegelian doctrine of the State as the highest expression of the objective spirit and from vitalistic irrationalism, which makes force or power the category for the affirmation of the nation or of the race. In order to realize its perfect internal autonomy and its imperialism abroad, it intends to make the entire economy of the nation a unitary and perfectly controlled instrument, tending toward maximum production with a view especially to military strengthening. Private property is in fact abolished, even if its forms are apparently maintained: indeed it is no longer capable of fulfilling its fundamental purpose, that is, of giving to persons, families and associated groups their free human development and the attainment of their own end willed by nature. The Church has repeatedly condemned this total enslavement of the human person and of all his demands for religious, familial, moral, cultural and civil freedom, proclaiming that only an effective free private property can at the same time safeguard the true good of persons and of States, which are not an end but an instrument for the attainment of human civilization in the peaceful collaboration of citizens and peoples (Pius XI, Ubi arcano, 1922; Quadragesimo anno, 1931; Charitate Christi, 1932; Mit brennender Sorge, 1937; Pius XII, Summi Pontificatus, 1939; Alloc. natal., 1939; Radiomessaggio, 1 June 1941; Radiom. natal. 1941 and 1942; Radiom. 1 Sept. 1944; Radiom. natal. 1944). The State, as a unitary and totalitarian economic enterprise, makes politics an instrument for organizing such an economy of production as to be capable of ensuring the maximum economic well-being for all according to their actual work, and thus ensuring the maximum happiness (State socialism). At its basis there is a demand for social justice, a futurism of perfect earthly happiness; but also a materialism, which makes economic well-being the greatest good, and an absolute subordination of the individual to the social whole. Babeuf, adopting as his own the ideas set forth by Morelly (v.), calls during the French Revolution for communism in the name of the liberal principle of equality: in the Manifeste des Egaux drafted by Buonarroti (cf. G. Sencier, Le Babouvisme après Babeuf, Paris 1912, p. 21) it is demanded that the State be the sole owner and direct all economic activity, without citizens having freedom of choice for work and free disposal of the fruits of their labor. Saint-Simon (v.) wants to abolish all social distinctions not founded on work and technical capacity: the State must become an economic enterprise directed by technicians for the maximum well-being of the collectivity. The Saint-Simonians see in property an instrument of labor; income without work is unjust; the inheritance of goods must therefore be abolished; the State must be the distributor of property, that is, of the means of production to those capable of yielding the maximum profit.

At the same time a conception of associationist socialism develops, which claims property for private collectivities of workers (Owen, Fourier, Proudhon). Proudhon (Qu'est-ce que la propriété, Paris 1847) defines the current form of individual property as theft. But this associationism, in order to become a reality, orients itself ever more toward positive State intervention, even if in words it condemns State capitalism (cf. E. Vandervelde, Le socialisme contre l'Etat, Paris 1918, p. 167) and seeks to constitute "public corporations, under the control of the State" (id., Le collectivisme et l'évolution industrielle, ibid. 1921, p. 12).

Marx (v.) begins the organic formulation of totalitarian collectivism, later brought to its maximum development by Russian Bolshevism (v.) through the work of Lenin (v.) and Stalin. With the doctrine of surplus value every legitimacy of capital is destroyed and labor is considered the sole source of the value of the goods produced: but it is not the individual worker who must be the owner of the means of production nor of what he produces, but rather the collectivity of workers. With the doctrine of class struggle framed within the theory of historical and dialectical materialism, the history of the property regime is considered as a history of oppression and power of the propertied class against the working class: the entire present degree of civilization and the entire juridical-religious and cultural expression of present society derives from capitalist property exploiting the proletarians. The revolution of the latter, united with the fatal disintegration of the capitalist world, will bring the proletarian class to the political power of the State, and through this it will destroy all the other classes and the ideological superstructures deriving from their economic supremacy, will appropriate all the means of production, will oblige everyone to work according to their abilities and will give each one a remuneration conforming to their actual contribution to unitary production. From this dictatorship of the proletariat there should arise a State no longer a political power, but an immense and totalitarian economic enterprise directed toward the material well-being of all. But it is evident that to attain this the dictatorship of the proletariat will have to extend to all nations: hence the Stalinist doctrine of the guiding State for world revolution. The natural value of private property has forced Stalin himself to concede the right of some individual property, excluding however the means of production and keeping it so regulated as to deprive it of all significance as a guarantee of individual and social freedom.

Leo XIII in Rerum Novarum condemns the socialist conception as inept, unjust and subversive; indeed it precludes for the proletarians themselves the free disposal of the fruits of their own labor and therefore the possibility of improving their conditions of life (no. 4). The right of private property is natural to the individual as a reasonable being who by his own care must provide for himself and his own (nos. 5-6); it is an expression of the human person itself; and the universal consent of men confirms it (nos. 7-8). Without the right of private property and of the free transmission of goods, the family institution, which by nature precedes the State, is destroyed (nos. 9-11). Collectivism subverts the social order and reduces all citizens to total slavery (no. 12).

Pius XI, in Quadragesimo Anno and in Divini Redemptoris, brings out the actual destruction of the fundamental human values brought about by communistic materialism and by Bolshevism; and he also warns against all moderate and reformist socialistic tendencies, because of their principles and their aims, which are contrary to a true conception of the human person and of society.

Pius XII confirms these condemnations: "the social revolution boasts of raising the working class to power: a vain word and a mere semblance of an impossible reality! In fact you see that the working people remain bound, yoked and held fast to the force of State capitalism; which oppresses and subjugates everyone, the family no less than consciences, and transforms the workers into a gigantic machine of labor" (Discourse, 13 June 1943, no. 6).

IV. PERSONALISTIC CONCEPTION AND DOCTRINE OF THE CHURCH

It defends the natural necessity of private p[roperty], but regards it as having, structurally and functionally, a social value. It is based on the distinction between the right of p[roperty] and that of its use: the use of material goods is by nature open to all men; but it cannot be concretely realized without private p[roperty], which is a source of labor and of wealth; the distribution of private p[roperty] and its use must lead to the greatest individual and social well-being, with a view to the strengthening of the human person in his insertion into the community.

Aristotle, against individualism and collectivism, affirms that "the system of individual p[roperty] integrated with community of use is preferable" (Politics, l. II, 1263 a), thus "p[roperty] tends to become common while remaining individual" (ibid.). Individual p[roperty] is in fact a requirement of nature, since "true love of self is not an effect of caprice, but of nature" (ibid.). Interest and affection are the two fundamental springs that nature has placed in man, to make him capable of attaining the fullness of his happiness; appropriation and communication complete each other for the human perfection brought about by virtue. "Each one, having p[roperty] for himself, shares the enjoyment with friends, and in turn enjoys it" (ibid.). The State, which from the harmonious collaboration of the appropriating and social activity of its citizens receives the possibility of its self-sufficiency, must intervene with moral education and with wise laws, suited to preventing the deleterious egoisms of those not yet sufficiently educated.

Christianity sees private p[roperty] in the light of its doctrine of divine Providence and of universal brotherly charity. The use of material goods is given potentially to the common disposal of all men, who, using them for their needs and for their progress, raise the universalitas rerum materialium to render perfect glory to God. But this potential disposition of common use cannot become actual without the toilsome labor of individuals, who appropriate material goods and transform them into wealth for their own good and for that of all humanity. From this there necessarily derive social inequalities, which only true charity can smooth over, transforming the powerful owner into a responsible manager, who administers and strengthens the goods entrusted to him by God, in order to carry out divine providence for his own good and that of his neighbor (St. Basil, Homily, VI: PG 31, 276).

Hence the splendid definition that St. Thomas gives of private p[roperty]: potestas procurandi et dispensandi (Sum. Theol., 2ᵃ-2ᵃᵉ, q. 66, a. 2). He assigns three reasons to confirm the requirement and the natural value of the right of private p[roperty]: " primo, quia magis sollicitus est unusquisque ad procurandum aliquid quod sibi soli competit...; alio modo quia ordinatius res humanae tractantur...; tertio, quia per hoc magis pacificus status hominum conservatur " (ibid.).

Therefore the structure and social function of individual p[roperty], which becomes an instrumental and providential means of wealth for the good of the individual and of the community: " quantum ad hoc non debet homo habere res exteriores ut proprias, sed ut communes, ut scilicet de facili aliquit eas communicet in necessitate aliorum " (ibid.). The State must intervene with its laws to establish the concrete regime of individual p[roperty], to sanction the legitimate titles of appropriation, excluding every immoderate or unnatural enrichment

(v. USURA) and directing all economic activity to the general good. But it is the moral virtue that ensures the common use of individual p[roperty]: first of all commutative justice, which brings about not merely the legal but the ethical just; then general (social) justice, which, perfected by true friendship and above all by charity, causes the person, through thrift, to transform his surplus, with liberality and magnificence, into generous providence for the social good.

The natural necessity of private p[roperty] and its structure and social function have been profoundly developed by contemporary Christian thought, with the aim of constituting a Christian social order conformable to the personal and communal value of man, against the destructive egoisms of economic liberalism and the suffocating slavery of totalitarian collectivism.

In the Rerum Novarum Leo XIII vindicates the natural necessity of private p[roperty] and the inviolability of its right, as essential to the dignity of the person, to the stability of the family, to well-being and social order themselves; and he affirms that social justice is brought about not by the destruction of private p[roperty], but by the opportune intervention in economic life of the Church's educative and charitable action, of legislation and wise coordination for the common good on the part of the State, and by the free development and strengthening of professional associations.

In the Quadragesimo Anno Pius XI deepens the problem of p[roperty] and of labor in the light of the new economic and state despotisms determined by private capitalism and by economic and political state totalitarianism. He defends as the Church's constant doctrine a " duplicem dominii rationem, quam individualem vocant et socialem, prout singulos respicit vel ad bonum spectat commune ". The right of individual p[roperty] is willed by nature, and public authority cannot abolish it or practically frustrate it without violating the rights of persons, of families and of free associations, and therefore the very foundations of associated life. Nevertheless the concrete regime of p[roperty] can vary according to times and circumstances; and it is the task of positive laws to establish such an ordering of private p[roperty] as, while ensuring the greatest development for individuals, families and free associations, may be coordinated to the greatest good of all. But more than by the intervention of the State, the common use of private p[roperty] can only be ensured by the moral virtues according to Thomist doctrine. The natural titles for the acquisition of p[roperty] are the occupatio rei nullius and industry exercised in one's own name. But the grave contemporary problem concerns the p[roperty] of goods produced by the cooperation of capital put to profit through the labor of others. Unjust are the claims of exclusive vindication both of the capitalists (individualism) and of the workers (collectivism): economic production is the social fruit of various elements that collaborate together not only for their own good but also for the good of the whole community. Just therefore is the wage, in which labor is considered neither as merchandise nor as the sole cause of appropriation: it must however be such as to express the personal and social dignity of the worker and to permit him the constitution and development of the family, the improvement of his condition and finally the formation of savings, which may enable him to gain access to p[roperty].

This access of all to p[roperty], against the monopolistic destruction of small and medium p[roperties] and against state capitalism, is constantly defended in the speeches of Pius XII, as a true social guarantee of the individual, familial, social and religious freedom of the human person. P[roperty] is considered as "the vital space of the family" (Speech, 1 June 1941, n. 13), as a necessary instrument for the elevation of the proletariat and for social peace (Speech, 1 Sept. 1944, nn. 7-14). The State must intervene not so much with nationalizations, which it can permit itself only in cases of evident public necessity (Speech, 11 March 1945), but by favoring an equitable distribution of p[roperty] (Speech, 1 June 1941, n. 10), in particular landed p[roperty] (ibid., n. 14), an effective collaboration between employers and workers (ibid., n. 11), a development of handicrafts and of small and medium industries

(Discourse, June 13, 1943, nos. 8-9). But Pius XII places the problem of property's accessibility especially on the international plane (Christmas Message, 1942, no. 26); and indeed the present economic despotisms and state totalitarianisms hinder the life of the poorest peoples: only free access to the sources of raw materials and free immigration toward lands in need of human labor can make it possible for all to work and for all to attain that property in goods which ensures the peace of peoples in the free development of the human person and of his values (Discourse, June 1, 1941, no. 15).

The problem of property and of the access of the forces of labor to property finds, in the contemporary economy, its chief object in the right constitution of the enterprise, in which capital and labor come together for the production of wealth and on which all social prosperity depends. Pius XII, taking up again the teaching of Quadragesimo anno, affirms: "a danger presents itself when it is demanded that wage-earners belonging to an enterprise have the right of economic co-management... Now neither the nature of the contract of labor nor the nature of the enterprise necessarily entails of itself a right of such a kind" (Discourse, June 3, 1950). "But this does not forbid employers to have the worker participate in some form and measure, just as it does not prevent the State from granting to labor the faculty of making its voice heard in the management of the firm in given firms and in given cases in which the overweening power of anonymous capital abandoned to itself manifestly harms the community" (Letter of the Secretariat of State of His Holiness to the President of the XXV Social Week, Turin, Sept. 1952). One must obtain above all, insists the Supreme Pontiff, "that the personal dignity of the worker, far from being lost in the general ordering of the enterprise itself, lead the latter to a greater efficiency, not only materially, but also and first of all by procuring for it the values of a true community" (Discourse, Jan. 31, 1952). These personalistic and communitarian characteristics of the enterprise, in its various forms, guide Christian thought in establishing that "new ordering of the productive forces of the people" which the Holy Father looked forward to in his discourse of March 11, 1945 (cf. Conclusions of the XXV Social Week, Turin, Sept. 1952).

Tullio Piacentini

V. THE RIGHT OF PROPERTY WITH PARTICULAR REFERENCE TO THE ITALIAN LEGAL SYSTEM

Without defining property, the Italian Civil Code (art. 832) establishes that «the owner has the right to enjoy and dispose of things in a full and exclusive manner, within the limits and with the observance of the obligations established by the legal system».

On the basis of this article and of the body of rules governing the matter, it may be affirmed that the right of property is first of all autonomous, that is, considered in its intimate nature and according to what is recognized indistinctly by all (save for errors in determining who its subject should be), it is not conceived in function of or in dependence on third parties, but as the immediate lordship of the person over the good that forms its object. Secondly, it is exclusive (save for the limits imposed by law or spontaneously assumed), in that the subject of the right can assert the property that belongs to him against anyone and over all, and precisely because it is full dominion, it can be, by the one who holds title to it, unlimitedly restricted not only in its intrinsic attributions (insofar as it itself entails rights), but also in its duration and in the active participation of others in the very substantial title of property. Finally, given the nature of property, which is often directed to goods that by natural and therefore intrinsic right already have a destination of their own, the right itself, while remaining meanwhile substantially within the reflections of the autonomous and immediate relation of the subject with the goods that constitute its object, can legitimately receive from the law — even positive law (which is the guardian and interpreter of the natural law) — limitations of varying extent.

It follows in practice that the right of property, although it is the real right par excellence, can nevertheless be reduced to such a degree as to be condensed into the mere title. Indeed, the distinction is well known between property or perfect dominion (comprising not only the psycho-moral relation of the person to the goods possessed but also their utility) and property or bare dominion, which entails the mere title without any actual utility over the thing for the holder. It is evident, however, that even in this case only apparently is property reduced to the mere title: not only because the extreme limits were willed by the holder (who therefore exercised his full power in disposing of his goods as he wished), but also because at the moment when the rights of third parties cease (by prior agreement, or by subsequent agreed or spontaneous interventions) property will naturally return to him who remained its holder. And thus there will be another element of property, which is that of internal perpetuity. To this is also due the fact that property is passively imprescriptible, that is, it does not cease in the subject by the mere fact of the non-use of the object that substantiates it; it can only cease through usucaption by third parties according to the moral and juridical norms proper to the case.

VI. ACQUISITION

Property is acquired by natural persons or by private and public moral entities through juridical facts of natural law or recognized by law or traditionally admitted by usage and custom. The titles that effect the acquisition are original or derivative. Although traditional doctrine, since remote antiquity, has recognized as an original title exclusively occupation (v.) of goods not belonging to others and carried out with the intent of becoming owner (and in reality, in the strictest sense, this alone is an original title), nevertheless the laws, because of the enormous affinity in very many effects existing between this title and others that in themselves would not be original, treat as original also invention, that is, the finding of things belonging to others (arts. 929, 932); accession both natural, as in alluvions (art. 941), in avulsions (art. 944), in islands and union of land in a river (art. 945), in the riverbed left dry by the waters (art. 942) and abandoned (art. 946), and artificial, as in sowings, plantings, constructions (arts. 934-38); specification (art. 949), union (art. 939), commixture (ibid.) and usucapion (arts. 1158-67).

With reference to occupation, originally a most important factor in the acquisition of property, especially of landed immovable goods, it suffices to recall that today it has almost completely lost its force and importance, given, especially in certain regions, the perfect and total distribution of the goods of the earth; nevertheless there is still true and proper occupation in the case of birds, land animals and aquatic animals that form the object of hunting and fishing (arts. 923-26), and especially in the case of treasure, although this constitutes as it were a separate and special title of acquisition of property (art. 932).

Titles of acquisition that are completely derivative, that is, due to the spontaneous will of the interested parties, are considered instead to be all the forms of contracts; mixed, that is, deriving from natural law and from the will of persons, are successions upon death; compulsory, by force of law, are all the other modes that the legislator establishes and that differ from the preceding ones independently of or against the will of the subject.

VII. SUBJECT

The subject of property is exclusively man, that is, anyone who is at least radically capable of understanding the usefulness of goods under all its meanings and of willing them to be attributed to himself as means for attaining determinate ends. Therefore not even the insane and children actually incapable of discernment are excluded from property. Moral persons too are subjects of property.

In the distinctions of subjects in the concrete, however, one must guard against the danger of confusing individual property with private property and collective with public property, even if in certain factors they may respectively coincide. The distinction between private property and public property entails exclusively that the goods forming its object belong respectively to persons of private law (even if moral persons) and of public law; that between individual property and collective property, on the other hand, denotes that the goods forming its object belong respectively to individuals in the first and to the collectivity as such in the second. Collective property symbolizes and almost naturally issues at its extremes in collectivism or communism, where no one is in the concrete effectively the owner of one or more objects; whereas public property has subjects and objects well distinct and determined without any communion of goods.

Nevertheless a certain resemblance, however very limited and always voluntary, with collective (though not public) property is everywhere found in one thing: the communion of goods (that is, the property of determinate goods that belong to several persons in common). In this communion, also called co-ownership or condominium, each participant has a right to the whole property, though limited precisely by the participation of others; in any case it is proper to the institution that the goods be attributed to the individual co-owners not pro dicto, that is, partially, but in their entire extent (arts. 1100-39).

VIII. OBJECT

Any thing that can in any way have utility can constitute the object of property. Insofar as they bring such utility, the things that form the object of property are better called goods (art. 810).

IX. LIMITATIONS

It has already been mentioned that the right of property, involving in principle the widest possible enjoyment and disposal of the goods that constitute it, does not necessarily exclude the right of the owner to self-limitations, by means of agreements more or less extensive but always voluntary; through them the utility of the thing is ceded in part or in whole, with only the bare title excluded in every case. Traditional examples of these limitations are the granting of use (art. 1021), of usufruct (arts. 978-1020), of habitation (art. 1022), of predial servitudes (arts. 1027-99), of emphyteusis (arts. 957-77), and the like, made to others over one's own goods.

There are, however, others that may be called legal, inasmuch as they are imposed by public authority for the attainment of the common good. They are contained in the various legislations and are more or less extensive and more or less serious. The Italian one speaks of the following: the owner may not perform acts of emulation, that is, he may not use his goods in such a way that, without deriving any benefit from it, he causes annoyance to others (art. 833); all citizens may be expropriated in the superior interest of the common good of certain goods (art. 834); citizens are likewise subject to temporary requisitions of their goods in cases of urgent and grave military or civil necessity (art. 835); certain goods, habitually or in extraordinary contingencies, may be subjected to requisitioning (art. 837); objects of private property that have artistic, historical, archaeological, ethnographic interest are subject to various limitations imposed by special laws (art. 839); urban real property is in very many centers subject to detailed rules of regulatory plans (art. 869); the same holds for the construction and preservation of buildings in localities declared seismic (art. 872); other limitations are those of distances in constructions (art. 873), in boundary walls or otherwise (arts. 874-76), in adjoining constructions (art. 877), in enclosing walls (art. 878), and other lesser ones referred to in arts. 883-89; finally various limitations concerning lights and views (arts. 900-907), the drip of water (art. 908) and waters (arts. 909-21).

Of very particular interest is the case of limitation not of the rights of property but of the right to property, or rather of its quantitative extent. It is relatively easy to understand the right of the State to intervene to limit the absolute freedom of disposal that the owner has in principle over his goods when these, especially if consisting of lands that could easily be destined for rational cultivation with consequent greater profit for the common and social good, are abandoned or in any case not exploited as they could be. More difficult, on the other hand, may seem the question whether it is lawful or not for the State to place limits on the extent of property, that is, in such a way that it is established by law what quantity of real property, generally landed, the citizen may hold in property, and whether it is lawful for the State to expropriate those goods that exceed the established limits. In fact in some nations both the one and the other limitation on the right of property have been imposed, for example, in Italy where the principles have entered into the Constitution itself (arts. 43-44) and are already being implemented by means of special laws issued relatively to large landed estates.

X. CESSATION

The factors that bring about or cause the loss of the right of property are various, nor are they all due to the sole will of the owner. In the first place, this right is lost through juridical transactions naturally or positively established for that purpose, principally sale, exchange, donation, testament. In the second place, through juridical abandonment of the object of property, that is, through dereliction that is adverted to and deliberate for all effects, with the intent of definitively interrupting the moral-juridical bond that unites the object to the person, even if in fact no one succeeds to the right of property. In the third place, through acquisitive prescription or usucapion on the part of third parties, operating independently of and in opposition to the will of the previous owner; in this case, however, the right of property ceases only for the previous owner when the new holder acquires it. Finally, through measures of public authority, that is, through expropriation for the purpose of compensating the creditors of an insolvent debtor or of making a work of public interest feasible.

XI. TUTELA

The right of property is protected by three actions. The first is that of recovery; by means of it the holder may reclaim from anyone who possesses or holds the thing that constitutes the object of his property, even if after the claim that person has, by his own act, ceased to possess or hold it. The action for recovery is not subject to prescription, save naturally in the case of usucaption (art. 948). The second is the action for the settlement of boundaries. When the boundary between two parcels of land is uncertain, each of the owners may request that it be established in court; the court will take into account every kind of lawful evidence or will adhere to the boundary delineated by the cadastral maps (art. 950). The third is the so-called negative action. By means of it the owner may act to have declared the non-existence of rights asserted by others over the thing, requesting at the same time that any disturbances or annoyances of any kind cease, should there be any (art. 949). The Code adds the action for the placing of boundary markers when these, between contiguous parcels of land, have become unrecognizable (art. 951), but this can be reduced to the second one referred to in art. 950.

XII. CANON LAW

By prevailing divine-positive will, the Catholic Church and the Apostolic See have a native right to acquire, retain and administer temporal goods freely and independently of the civil power for the attainment of their ends (CIC, can. 1495 § 1). Individual churches too, and the other persons juridically erected by ecclesiastical authority, have the right according to the sacred canons to acquire, retain and administer temporal goods (ibid. § 2). Goods belonging to the Catholic Church or to the Holy See or to another moral person legitimately erected, both corporeal goods and others, are ecclesiastical goods (can. 1497 § 1) and are called sacred if destined to divine worship by consecration or blessing, precious if they have a notable intrinsic value or value of art or of history (ibid. § 2). The Church can acquire temporal goods in all the legitimate ways of natural and positive law by which this is lawful for others (can. 1499 § 1); all ecclesiastical goods, to whomever they belong, are subject to the supreme authority of the Apostolic See (ibid. § 2).

Lorenzo Simcone

XIII. THE RIGHT OF PROPERTY IN ETHNOLOGY

Evolutionist ethnologists pictured primitive humanity as the realm of moral chaos, in which, as regards property, a boundless communism would have been practiced, in the coexistence of individuals pure egoism would have dominated, "the struggle for existence," and in the mutual relations of groups the "bellum omnium contra omnes." Modern ethnology, on the other hand, has demonstrated the groundlessness of these theories, which were supported only by materialist presuppositions and philosophical a priori assumptions. It has, moreover, made clear that primitive peoples recognize a manifold right of property, as well as its social function and its moral and religious foundation. Only the manner varies.

Among the ethnologically most archaic peoples (the Andamanese, the Negritos of the Philippines, the Semang of Malaya, the Negrillos of Africa, the Fuegians of Tierra del Fuego, etc.) the territory of hunting and gathering is not the property of the single person, nor of the single family, but of the local group, ordinarily formed of 30-70 persons, blood relatives with their wives. Such property consists in the possession of about 30-70 km², on average, of terrain with definite boundaries, within which only the members of the group may carry on hunting and gathering. Members of other local groups may not enter it except with the consent of the owning group, a consent given only in the case that their respective territory is no longer sufficient for them for hunting and gathering. Within the group every single family preserves its freedom and economic independence; each has its own hut, where the husband and wife bring their hunting and gathering. They have the obligation to support their parents, once these have become incapable of work. The property of weapons and tools, of the clothes and ornaments that each one has made, or has received, of the boat that he has built, of the hut that the woman has erected, is regulated in the sense that everything the husband, the wife or the child has made with their own labor, as well as everything that has been given to them, is individual property. So it is precisely in this first stage of civilization, notes the Rev. W. Schmidt, that one finds the relatively greatest number of owners.

This right of property is conceived and harmonized with social duties toward those who have nothing, and is therefore pervaded with love and altruistic feeling. Among the peoples in question there is great joy in making gifts to others. Of the aforementioned Fuegians it has been written: "It seems that they want to possess only in order to be able to give." Koppers, their explorer, reports in this regard the following observation of theirs: "When you want to give something away, give a good thing. He who receives the gift will notice it at once and will tell everyone that you are a good man."

Among some of these peoples, visits of friendship often take place in places more than a day's journey away and last several days. During such visits, dances, games, hunts and gatherings take place in common, and they compete in mutual gifts. They willingly lend their own things without demanding compensation for them, even when the lender then finds himself in a need that could be satisfied by the loan. In the case, however, that the one who has borrowed has obtained a profit from it, he must share the gain with the owner, though rarely by half. What is lent is always promptly returned. Explorers are unanimous in affirming the complete honesty of these peoples: they do not touch the explorer's things, even if left unguarded; and things forgotten or lost by the explorer are brought back to him, chasing after him and tracking him down even at a great distance.

The property characteristic of pastoral peoples is that of the flocks and herds, whence they have their means of subsistence. While gathering peoples cannot make use of animals except when they have killed them, pastoral peoples have every interest that the livestock multiply, because their wealth lies in great flocks. The increase or otherwise of the flock and the herd, besides depending on the skill and prudence of the shepherd, also depends on conditions independent of his will. Epidemics and natural disasters, such as long droughts, can destroy entire flocks and reduce the owners to poverty, forcing them, in order to live, to place themselves in dependence on another, more fortunate family; thus among pastoralists one finds the first examples of servitude or slavery. From livestock are drawn not only meat, milk with its products, the blood of oxen (in Africa) for food, but also hides, and hence cumo and felt, for clothing, tents, etc. All this is common family property, except when it is a matter of the dowry brought by the bride, for in this case it is personal property. Likewise personal property are weapons and what belongs to the horseman. Among pastoral peoples, the so-called bride price and the dowry receive particular consideration. The bride price can be 20-50 reindeer among the Samoyeds, 20-60 oxen among Africans and 5 camels among Arabs, which are regarded as compensation for the expenses incurred by the family for the bride herself. For the most part the dowry consists of clothes and ornaments, utensils and other objects of feminine use, or also of some domestic animals, of which often one cannot dispose without the consent of the bride herself. The value of the dowry for the Samoyeds and the Tungus equals half the bride price, among the horse breeders of Central Asia a quarter or a half. Whoever steals must repay tenfold, as among the Tibetan pastoralists. Since pastoralists are nomads, territory matters less to them than to gathering peoples, although they have it to a greater extent for the grazing of the herds and flocks. It is tribal property. All property passes by inheritance to the eldest son of the patriarch of the family.

What distinguishes gathering and pastoral peoples from agricultural and totemistic peoples as regards landed property is first of all that for the latter it becomes a place of fixed and stable dwelling. With the cultivation of plants the field acquires a specific economic value for the sustenance of life and becomes the personal property of the cultivator, who establishes there his dwelling, his storehouse, and there raises and keeps his domestic animals (the pig and poultry). Since the field is cultivated mainly by the woman, using the digging stick and then the hoe, it is the woman who enjoys the right of property over it, a right that she transmits to her daughters, together with the house, the tools, the utensils, the vessels, etc. The men possess the fruit trees they have planted, the weapons and personal things; when later secret societies arise, these reserve for themselves the meeting place of the society, the house, the masks, etc. At the initiation festivals the women must provide the food. Totemistic peoples know neither agriculture nor livestock breeding, but by perfecting the tools and methods of hunting they have given rise to a hunting industry and to an organization of the tribe, called in ethnology the "higher type of hunting and social organization." The right of territorial property is broadened, because a superior collective right of property over all the hunting and gathering territories is recognized to the tribe as such. Thus it is in Australia. The development of crafts, industry, art and commerce increasingly accentuates the right of personal property.

If, as Father Schmidt has noted, already in the civilization of gatherers the general legal sensibility had come to admit that the producer of an object was unquestionably its owner, this appears clearer when an object is the fruit of individual artisanal workmanship. In the intersection of totemism with other civilizations, especially with that of matriarchal agriculturalists, this significant awareness of individual property also exerts an influence in other directions. Father Schmidt also called totemism "trade totemism," because within it commerce develops, both individual and group commerce. Among the members of the same totem great solidarity is observed.

In the course of the numerous and manifold movements of peoples that led to the formation and development of new civilizations, property too took on new forms. With the predominance of pastoral peoples over agricultural peoples, landed property is assumed by the emperor, who then distributes it among vassal princes, transforming the agriculturalists into serfs, who thus ended up possessing only movable goods. Among the Annamites, the goods of the wife and of the husband are distinguished, as are the goods acquired in common by the family, to which the spouses have equal right. In the division of family goods among brothers, a special portion was reserved for the cult of the ancestors proper to the group and was entrusted to the eldest brother. Similarly, in Chinese Turkestan a woman by marriage retains the right of property and of use of her personal goods. When she no longer has a husband, the usufruct passes to her parents; if she has children, it remains in the family. In the event of divorce she recovers not only her goods, but also the compensation for what was expended from them for the family community. Among the ancient Mexicans there was the landed property of the clan, of individual families, transmissible to firstborns, of the state domain, administered by the sovereign, worked by slaves and freemen and exempt from tribute, and finally of the temple. This was increased both by the donations of nobles who became priests and by the assignment of parts of the territory conquered after a victorious military expedition.

Primitive peoples do not regard the right of property as absolute, but consider it as a usufruct granted by the owner, who is the Creator; for this reason gathering peoples offer to God the first-fruits sacrifice, that is, sacrificing to him a part, the first, of the prey just captured. Pastoral peoples offer the first-fruits sacrifice, at determined times of the year, either by reserving to God an animal of the flock, preferably white and without blemish, and leaving it free with a special distinguishing mark, precisely so that others may recognize that it has been reserved to God and therefore cannot be used by men; or they offer to God the milk, just milked, or a product of it, such as humis, curdled milk. The first-fruits sacrifice is often observed also among agricultural peoples, such as the Lolo, the Po, the ancient Chinese.

Consequently, among the ethnologically most archaic peoples there exists a clearly distinct right of personal, familial and community property, a right that then assumes various forms in different civilizations, and is also conceived in a social and altruistic function and founded on religion, that is, as a right derived from God. From what property is among present-day gathering peoples, it is just and lawful to deduce that at bottom it cannot have been different in the earliest days of humanity. Therefore Father Schmidt was recently able to conclude: "This moral chaos of the earliest times never existed; it was only a postulate necessarily deriving from pretentious progressive evolutionism. The reality ascertained by exact investigations among the very oldest peoples has flatly refuted this postulate."

Luigi Vannicelli