Property

PROPERTY. - A legal term indicating the relationship of eminent sovereignty or dominion that a person (individual or collective, private or public) acquires, by virtue of legitimate titles, over a determinate thing, so as to dispose of it freely in an exclusive manner, for their own good coordinated with the common good.

It is distinguished from mere possession (v. POSSESSION), which expresses only the fact of the current availability of the object; and from usufruct, which grants the right to the mere enjoyment of the fruits of a determinate thing, excluding ownership of the thing itself.

CONTENTS:

I. Notion and general principles

II. Individualistic conception of the right to p

III. Collectivist conception

IV. Personalist conception and the doctrine of the Church

V. The right to p. with particular reference to the Italian legal system. -

VI. Acquisition

VII. Subject

VIII. Object

IX. Limitations

X. Cessation

XI. Protection

XII. Canon law

XIII. The right to p. in ethnology.

I. NOTION AND GENERAL PRINCIPLES

The term property is often replaced by the term dominion, whose use, in fact, precedes it (alongside mancipium) in Roman law. The right of property is indeed a species of the right of dominion, which, insofar as it pertains to a person in relation to other persons, is ius iurisdictionis, whereas if it pertains to 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 property (v. SCHIAVITÙ).

As dominion, the right of property grants a faculty over the thing that is in itself indeterminate and indefinable, its concrete determination depending on the mutable economic-social circumstances: thus, it appears historically in various ways, limited and circumscribed according to its insertion into a more or less organized social complex. Hence the necessity of a property regime in which the right of property is concretized according to the infinitely variable economic-social movement. According to the principle of the elasticity of dominion, the right of property expands more or less depending on the greater or lesser compression it undergoes from concurrent private and public rights. This is expressed in the definitions of the right of property derived from the Roman juridical 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 sovereignty over the thing, whether in act or at least in potency" (Bonfante).

These definitions, however, are incomplete because they do not indicate the final cause of property, which, not having an absolute value in itself but one of pure instrumentality for individual and social human perfection, must be defined only in light of this finality.

Contemporary sociology is primarily concerned with the property regime to determine the social-economic laws of the various forms of property in successive cultural phases and different historical periods. In this analysis, evolutionary and sociological positivism excludes any justification for the natural right of property, considering it

as a mere product of egoistic instincts or social pressures: hence its preoccupation with studying 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). dialectical materialism (v.) make the historical development of the property regime 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 abundance of goods, realized by a perfectly organized society (cf. F. Engels, Der Ursprung der Familie, des Privateigentums und des Staats, Zurich 1884). However, an objective study of cultural and historical phases, while showing a continuous variability of the property regime 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, not only for economic reasons but above all as a guarantee of free activity and free development and as an affirmation of power. Even in primitive economies, private property 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 property have consistently asserted themselves: familial property, closely linked to the progress of individuals; public property, concerning the life of the entire social group both internally and in relations with other groups; and religious property, directed toward the needs of worship. If in certain forms of culture (the patriarchal period) the subject of these three fundamental appropriations may materially have been united in the same person, formally the three types of appropriation have always remained distinct, as an expression of natural exigencies 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 dual value of power and freedom that the right of property holds in social life, as an instrument of liberation and affirmation of one's personality, of which historical awareness has been taken.

The problem of the right of property, therefore, cannot be resolved solely in light of economic considerations but according to the value attributed to individuals, society, and religion. Thus, three fundamental philosophical conceptions of the right of property emerge: the individualistic, the collectivistic, and the personalistic, depending on whether man is conceived as essentially an atomistic individual, or as entirely subject to social reality, or finally as a person realizing his human value in social communion.
II. INDIVIDUALISTIC CONCEPTION OF THE RIGHT TO PROPERTY — Starting from the absoluteness of the egoistic individual, the optimism of free initiative, and the fundamental essentiality of economic activity, the individualistic conception sees the right to property as a faculty inherent to the very essence of the individual, as an expression of unlimited freedom, and having as its sole purpose the particular interest of the single person. This conception is proper to economic liberalism (the Manchester School) and is founded on the doctrines of philosophical-social liberalism (v. LIBERALISMO), 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 arose as a defense of the family institution, considered as an inviolable socio-economic unit: everything 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 also to greater state limitations on its original absoluteness and perpetuity, in reference to the more complex superior 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, prior to civil law, dictated by the ius gentium, as a universal concrete expression of natural law: these are founded on the occupatio rei nullius with the intention of appropriation. The title of labor is also recognized, but in a subordinate manner, in the modes of acquisition of accessio and specificatio (Gaius, Inst., II, 65 § 2, 1).

The definitions of the right to property given by the glossators and commentators of Roman law (Bartolus, Hotman), in light of the absoluteness and perpetuity of dominion and the necessary limitation deriving from social 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 each (ius omnium in omnibus); but the social contract, giving rise to associated life, poses the exigency of the private appropriation of some goods, founded on occupation and mutual agreement (Grotius, De iure pacis et belli, II, cap. 2), and together the necessity of civil law that guarantees II.
With Locke begins the liberal conception of individual property. The right to property is intimately connected by him with that of individual freedom, which, requiring the right to labor as an expression of the free disposition of oneself, also posits the right to 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 thus with his personality (Two Treatises on Government, London 1690, II, cap. 3), giving them that character of absolute inviolability which it has by nature. Thus, "property is to be understood as that which men have both over their persons and over their goods" (ibid., cap. 2). Under the influence of the Enlightenment, property is considered as an integral element of the liberal triumvirate of the fundamental rights of man: liberty, fraternity, equality. But the utilitarian individualism at its base renders the principle of fraternity ineffective and ensures that the principle of equality does not entail state intervention to determine socio-economic equity, but merely a political-juridical guarantee of the free appropriation and disposition of what one has acquired: hence free economic competition and conservatism against the propertyless classes. The Napoleonic Code defines property as: le droit de jouir et de disposer des choses de la manière la plus absolue (art. 544). It even admits the faculty of destroying what is one's own, without regard for the harm caused to the community (J. Pothier, Traité de la propriété, Paris 1831, p. 4).

Under the aegis of liberal codes, economic liberalism has given maximum development to the current capitalism, characterized by the exploitation of capital holders toward workers and by the violent economic struggle determining the destruction of small and medium property in favor of a few monopolists, who under the guise of anonymity control the entire global economic life. The result has been a totalitarian economic despotism that has provoked the gravest 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 a requirement of nature; but it has a social structure and 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, families, free associations, states, the entire human community, and 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 thus by morality and state intervention, as a direction toward the common good. The State cannot abolish free initiative and private property; but it must ensure that all are truly free, and that all may enjoy economic goods and access property, as an effective guarantee, willed by nature, for the fullness of their human life.

(cf. Pius XI, Quadragesimo anno, nn. 19, 25, 37, 41, 42, 43; Pius XII, Radiomessaggio natal., 1941, n. 6; Radiomessaggio, 1° sett. 1944, n. 11).

III. COLLECTIVIST CONCEPTION

This conception advocates the destruction of private property in favor of collective public property. Historically, it first appeared as negative communism, and only recently as positive communism.

Negative communism stems from an ethical-ascetic stance that imposes contempt for material goods in favor of and in service to higher goods: in service to the ideal unity of the State, representing the supreme human good, as Platonism asserts (Plato, Republic, 462 C); in service to universal brotherhood realizing divine supreme good through charity, as the Christian asceticism of the Fathers teaches (St. Basil, St. John Chrysostom, St. Ambrose, St. Augustine). While Platonic conceptions of the ideal city, revived even in the 17th century, remained on the plane of pure utopia, Christian asceticism sought partial concrete applications in some primitive communities of the faithful (Jerusalem, Alexandria), in monasteries, in mendicant Orders, and in any case served to orient spirits toward a communal participation in the use of one’s goods. Some medieval heretical sects (Albigensians, Cathars, Moravian Brethren, etc.) not only denied the right of ecclesiastical property but also reached apocalyptic forms of communism, giving rise to antisocial movements against the very institution of the family and the State.

Positive communism emerged 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, sharing a reaction against individualism (v. INDIVIDUALISMO) and private capitalism and the complete absorption of private forces into the life of the total 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 same 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 objective spirit and from vitalistic irrationalism, which makes force or power the category for the affirmation of the nation or race. 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, aiming at maximum production especially for military strengthening. Private property is de facto abolished, even if its forms are apparently maintained: it is no longer capable of fulfilling its fundamental purpose, that is, to enable persons, families, and associated groups to achieve 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 all its demands for religious, familial, moral, cultural, and civil freedom, proclaiming that only an effective free private property can simultaneously safeguard the true good of persons and 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 September 1944; Radiom. natal. 1944). The State, as a unitary and totalitarian economic enterprise, makes politics an instrument for organizing an economy of production capable of ensuring maximum economic well-being for all according to their actual work, thus ensuring maximum happiness (State socialism). At its foundation lies a demand for social justice, a futurism of perfect earthly happiness; but also a materialism that makes economic well-being the supreme good, and an absolute subordination of the individual to the social whole. Babeuf, adopting the ideas enunciated by Morelly (v. MORELLY), invokes communism during the French Revolution in the name of the liberal principle of equality: in the Manifeste des Egaux drafted by Buonarroti (cf. G. Sencier, Le Bobouisme après Babeuf, Paris 1912, p. 21), it is demanded that the State be the sole proprietor and direct all economic activity, without citizens having freedom of choice in work or free disposition of the fruits of their labor. Saint-Simon (v. SAINT-SIMON) seeks to abolish all social distinctions not founded on labor and technical ability: the State must become an economic enterprise directed by technicians for the maximum well-being of the community. The Saint-Simonians see property as an instrument of labor; rent without labor 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.

Contemporaneously, a conception of associational socialism develops, which claims property for private collectives of workers (Owen, Fourier, Proudhon). Proudhon (Qu'est-ce qu'est la propriété, Paris 1847) defines the current form of individual property as theft. But this associationalism, to become a reality, increasingly orients itself toward positive state intervention, even if in words it condemns state capitalism (cf. E. Vandervelle, Le socialisme contre l'Etat, Paris 1918, p. 167) and seeks to establish "public corporations, under the control of the State" (id., Le collectivisme et l'évolution industrielle, ibid. 1921, p. 12).

Marx (v. MARX) begins the organic formulation of totalitarian collectivism, later brought to its maximum development by Russian Bolshevism (v. BOLSCEVISMO) through Lenin (v. LENIN) 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 produced goods: but it is not the individual worker who must be the owner of the means of production or of what he produces, but rather the collective of workers. With the doctrine of class struggle framed within the theory of historical and dialectical materialism, the history of the property regime is seen as a history of oppression and power of the propertied class against the working class: all the current degree of civilization and all the juridical-religious and cultural expression of present society derive from capitalist property exploiting the proletarians. The revolution of the latter, combined with the inevitable disintegration of the capitalist world, will bring the proletarian class to political power in the State, and through it will destroy all other classes and the ideological superstructures deriving from their economic supremacy, will appropriate all means of production, will compel all to work according to their abilities, and will give each a remuneration according to their effective contribution to unitary production. From this dictatorship of the proletariat should arise a State no longer a political power but an immense and totalitarian economic enterprise directed toward the material well-being of all. However, it is evident that to achieve this, the dictatorship of the proletariat must extend to all nations: hence the Stalinist doctrine of the guiding State for world revolution. The natural value of private property has forced even Stalin to grant the right to some individual property, excluding, however, the means of production and regulating it in such a way as to remove any meaning of guarantee of individual and social freedom.

BIBL.:
For the historical and doctrinal aspects of communism: G. Goyau, Le Christianisme et l'idée de patrie, Paris 1905; J. Leclerq, Les grandes lignes de la philosophie morale, Louvain 1938; G. Gurvitch, L'idée du droit social, Paris 1932; G. Pirou, Doctrines sociales et science économique, Paris 1925; G. Renard, La valeur de la loi, Paris 1928; J. Maritain, Humanisme intégral, Paris 1936; A. Fanfani, Cattolicesimo e protestantesimo nella formazione storica del capitalismo, Milan 1934; G. La Pira, La genesi del sistema nella dottrina di S. Tommaso, Florence 1934; E. Mounier, Manifeste au service du personnalisme, Paris 1936; G. Del Vecchio, Lezioni di filosofia del diritto, Rome 1930; A. Gemelli, Il mio contributo alla filosofia neoscolastica, Milan 1932; F. Olgiati, Il concetto di giuridicità in S. Tommaso d'Aquino, Milan 1943; G. Toniolo, Trattato di economia sociale, Florence 1907-1921; P. Tischleder, Eigentumsrecht, Paderborn 1933; J. Messner, Das Naturrecht, Innsbruck 1950; H. Pesch, Lehrbuch der Nationalökonomie, Freiburg 1905-1923; O. Schilling, Die Staats- und Soziallehre des hl. Thomas von Aquin, Munich 1923; G. Briefs, Zwischen Kapitalismus und Syndikalismus, Bern 1952; A. Müller-Armack, Das Jahrhundert ohne Gott, Münster 1948; W. Sombart, Der moderne Kapitalismus, Munich 1928; M. Scheler, Der Formalismus in der Ethik und die materiale Wertethik, Halle 1921; R. Guardini, Das Ende der Neuzeit, Würzburg 1950; J. B. Kraus, Scholastik, Puritanismus und Kapitalismus, Munich 1937; A. Ritschl, Die christliche Lehre von der Rechtfertigung und Versöhnung, Bonn 1882-1883; E. Troeltsch, Die Soziallehren der christlichen Kirchen und Gruppen, Tübingen 1912; H. de Lubac, Catholicisme, Paris 1938; J. Leclercq, Les grandes lignes de la philosophie morale, Louvain 1938; G. Gurvitch, Morale théorique et science des mœurs, Paris 1937; G. Pirou, Les doctrines économiques en France depuis 1870, Paris 1925; G. Renard, La théorie de l'institution, Paris 1930; J. Maritain, Les droits de l'homme et la loi naturelle, New York 1942; A. Fanfani, Storia delle dottrine economiche, Milan 1938; G. La Pira, Premesse della costituzione, Florence 1946; E. Mounier, Traité du caractère, Paris 1946; G. Del Vecchio, Sulla positività come carattere del diritto, Rome 1935; A. Gemelli, La psicologia dell'orientamento professionale, Milan 1945; F. Olgiati, L'anima dell'Umanesimo e del Rinascimento, Milan 1924; G. Toniolo, Provvidenzialismo storico, Rome 1922.

A. F. UTZ

In Rerum Novarum, Leo XIII condemns the socialist conception as inept, unjust, and subversive; it indeed precludes the proletariat itself from the free disposition of the fruits of their labor and thus from the possibility of improving their living conditions (n. 4). The right to private property is natural to the individual as a reasonable being who, through his care, must provide for himself and his family (nn. 5-6); it is an expression of the human person itself, and the universal consensus of mankind confirms it (nn. 7-8). Without the right to private property and the free transmission of goods, the family institution, which is antecedent by nature to the State, is destroyed (nn. 9-11). Collectivism subverts the social order and reduces all citizens to total slavery (n. 12).

Pius XI, in Quadragesimo Anno and Divini Redemptoris, highlights the actual destruction of fundamental human values determined by communist materialism and Bolshevism; and he also warns against all moderate and reformist socialist tendencies, due to their principles and objectives contrary to a true conception of the human person and society.

Pius XII confirms these condemnations: « the social revolution boasts of elevating the working class to power: vain words and mere appearance of an impossible reality! In fact, you see that the working people remain bound, yoked, and constrained by the force of state capitalism; which oppresses and subjugates all, no less the family than consciences, and transforms workers into a gigantic machine of labor » (Discourse, 13 June 1943, n. 6).

IV. PERSONALIST CONCEPTION AND THE DOCTRINE OF THE CHURCH

It defends the natural necessity of private property (p.), but considers it as structurally and functionally possessing a social value. It is based on the distinction between the right to property and the right to its use: the use of material goods is by nature open to all men; yet this cannot be concretely realized without private property, which is a source of labor and wealth. The distribution of private property and its use must lead to the maximum individual and social well-being, with a view to enhancing the human person in his communal integration.

Aristotle, against individualism and collectivism, affirms that « the system of individual property integrated with the common use of goods is preferable » (Politics, bk. II, 1263 a), so that « property tends to become common while remaining individual » (ibid.). Individual property is indeed a requirement of nature, since « true self-love is not a matter of caprice, but of nature » (ibid.). Interest and affection are the two fundamental springs that nature has placed in man to enable him to attain the fullness of his happiness; appropriation and communication mutually integrate for the human perfection achieved through virtue. « Each one, having property for himself, shares its enjoyment with friends, and in turn enjoys theirs » (ibid.). The State, which receives from the harmonious collaboration of the appropriative and social activity of its citizens the possibility of its self-sufficiency, must intervene with moral education and wise laws to prevent the harmful egoisms of those who are not yet sufficiently educated.

Christianity views private property in the light of its doctrine of divine Providence and universal fraternal charity. The use of material goods is potentially given for the common disposal of all men, who, by employing them for their needs and progress, elevate the universalitas rerum materialium to render perfect glory to God. Yet this potential common use cannot become actual without the laborious effort of individuals, who appropriate material goods and transform them into wealth for their own good and that of all humanity. From this necessarily arise social inequalities, which only true charity can smooth, transforming the powerful owner into a responsible steward who administers and enhances the goods entrusted to him by God to fulfill 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 property: potestas procurandi et dispensandi (Summa Theologiae, II-II, q. 66, a. 2). He assigns three reasons to validate the requirement and natural value of the right to private property: "first, because each person is more solicitous in procuring what belongs to him alone...; second, because human affairs are more orderly...; third, because through this a more peaceful state of men is preserved" (ibid.).

Thus, the structure and function of individual property are social: it becomes an instrumental and providential means of wealth for the good of the individual and the community: "in this respect, man ought not to possess external things as his own, but as common, so that he may readily share them in the needs of others" (ibid.). The State must intervene with its laws to establish the concrete regime of individual property, to sanction legitimate titles of appropriation, excluding any immoderate or unnatural enrichment (v. USURA) and directing all economic activity toward the common good. But it is moral virtue that ensures the common use of individual property: first, commutative justice, which realizes not merely legal but ethical justice; then, general (social) justice, which, perfected by true friendship and above all by charity, ensures that the person, through thrift, transforms the superfluous with liberality and magnificence into generous providence for the social good.

The natural necessity of private property and its social structure and function have been profoundly developed by contemporary Christian thought, with the aim of establishing a Christian social order in conformity with the personal and communal value of man, against the destructive egoisms of economic liberalism and the stifling slavery of totalitarian collectivism.

In Rerum Novarum, Leo XIII reaffirms the natural necessity of private property and the inviolability of its right as essential to the dignity of the person, the stability of the family, and social well-being and order itself. He asserts that social justice is achieved not through the destruction of private property but through the appropriate intervention in economic life of the Church’s educative and charitable action, the wise legislation and coordination for the common good by the State, and the free development and strengthening of professional associations.

In Quadragesimo Anno, Pius XI deepens the problem of property and labor in light of the new economic and state despotisms determined by private capitalism and economic and political totalitarianism. He defends as the constant doctrine of the Church a "twofold aspect of ownership, which they call individual and social, according as it regards individuals or looks to the common good." The right to individual property is willed by nature, and public authority cannot abolish or practically frustrate it without violating the rights of persons, families, and free associations, and thus the very foundations of social life. Nevertheless, the concrete regime of property may vary according to times and circumstances; it is the task of positive laws to establish such an order of private property that, while ensuring the maximum development of individuals, families, and free associations, is coordinated with the greatest good of all. But more than through state intervention, the common use of private property can only be ensured by moral virtues according to Thomistic doctrine. The natural titles for the acquisition of property are occupatio rei nullius and industry exercised in one’s own name. Yet the grave contemporary problem concerns the property of goods produced by the cooperation of capital put to profit through the labor of others. The exclusive claims of either capitalists (individualism) or workers (collectivism) are unjust: economic production is a social fruit of various elements that collaborate not only for their own good but also for the good of the entire community. Just, therefore, is the wage, in which labor is not considered as a commodity nor as the sole cause of appropriation: yet it must be such as to express the personal and social dignity of the worker and enable him to establish and develop a family, improve his condition, and finally form savings that allow him access to property.

This access of all to property, against the monopolistic destruction of small and medium properties and against state capitalism, is constantly defended in the discourses of Pius XII as the true social guarantee of the individual, familial, social, and religious freedom of the human person. Property is considered as the « vital space of the family » (Discourse, June 1, 1941, n. 13), as a necessary instrument for the elevation of the proletariat and social peace (Discourse, September 1, 1944, nn. 7-14). The State must intervene not so much through nationalizations, which may be permitted only in cases of evident public necessity (Discourse, March 11, 1945), but by fostering an equitable distribution of property (Discourse, June 1, 1941, n. 10), particularly land (ibid., n. 14), effective collaboration between employers and workers (ibid., n. 11), and the development of craftsmanship and small and medium industries.

The problem of property and access to property for labor forces finds its primary focus in contemporary economics in the proper constitution of the enterprise, where capital and labor meet for the production of wealth and on which the entire social prosperity depends. Pius XII, revisiting the teachings of Quadragesimo anno, states: « a danger arises when it is demanded that wage earners belonging to an enterprise have the right to economic co-management... Now, neither the nature of the labor contract nor the nature of the enterprise necessarily entails such a right in itself » (Discourse, June 3, 1950). « However, this does not prevent entrepreneurs from involving the worker in some form and measure, nor does it prevent the State from granting labor the faculty to make its voice heard in the management of certain enterprises and in specific cases where the overwhelming power of anonymous capital, left to itself, clearly harms the community » (Letter from the Secretariat of State of His Holiness to the President of the XXV Social Week, Turin, September 1952). Above all, the Supreme Pontiff insists, it is necessary to ensure « that the personal dignity of the worker, far from being lost in the general organization of the enterprise itself, leads it to greater efficiency, not only materially but also, and primarily, by endowing it with the values of a true community » (Discourse, January 31, 1952). These personalist and communal characteristics of the enterprise, in its various forms, guide Christian thought in establishing that « new order of the productive forces of the people » which the Holy Father hoped for in his discourse of March 11, 1945 (cf. Conclusions of the XXV Social Week, Turin, September 1952).

On the basis of this article and the body of norms regulating the matter, it can be affirmed that the right of property is, first of all, autonomous, that is, considered in its intimate nature and according to what is indistinctly recognized 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 an immediate dominion of the person over the good that constitutes its object. Secondly, it is exclusive (save for the limits imposed by law or voluntarily assumed), insofar as 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 its holder, unlimitedly restricted not only in its intrinsic attributions (as far as it itself entails rights), but also in 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 toward goods that by natural and thus intrinsic right already have their own destination, the right itself, while remaining substantially in 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 natural law)—limitations of various extents.

In practice, it follows that the right of property, though it is the real right par excellence, may nevertheless be so reduced as to condense into the mere title. Indeed, the distinction between perfect property or dominion (comprising not only the psycho-moral relation of the person to the possessed goods but also their utility) and bare or naked property, which entails only the title without any current utility over the thing for the holder, is well known. It is evident, however, that even in this case, property only apparently reduces to the mere title: not only because the extreme limits have been willed by the holder (who has thus 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 previous agreement, or by subsequent interventions agreed upon or spontaneous), property will naturally return to the one who remained its holder. And thus another element of property emerges, which is that of internal perpetuity. This also explains why property is imprescriptible passively, that is, it does not cease to exist in the subject merely due to the non-use of the object that substantiates it; it can only do so through usucaption by third parties according to the moral and legal norms proper to the case.

VI. ACQUISITION

Property is acquired by natural persons or by private and public moral entities through juridical acts of natural law or recognized by legislation or traditionally admitted by customs and usages. The titles that effect acquisition are original or derivative. Although traditional doctrine, since remote antiquity, has recognized the form of original title exclusively in occupation (v. OCCUPAZIONE) of goods not belonging to others and carried out with the intent to become owner (and in reality, in the strictest sense, this alone is an original title), nevertheless laws, due to the enormous affinity in 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 others' things (arts. 929, 932); accession, both natural, as in alluvions (art. 941), avulsions (art. 944), islands and land unions in rivers (art. 945), in riverbeds left dry by 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 the principal 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, above all in certain regions, the perfect and total distribution of the earth's goods; nevertheless, true occupation still occurs in the case of wild animals, terrestrial and aquatic, which are the object of hunting and fishing (arts. 923-26), and especially in the case of treasure, although this constitutes a separate and special title for the acquisition of property (art. 932).

Titles of acquisition that are entirely derivative, that is, due to the spontaneous will of the interested parties, are instead considered all forms of contracts; mixed, derived from natural law and the will of persons, are successions due to death; forced, by the will of the law, are all other modes that the legislator establishes and different from the preceding, 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 utility of goods in all their meanings and of willing to attribute them to themselves as means to achieve determined ends. Therefore, even the insane and children who are currently incapable of discernment are not excluded from property. Moral persons are also subjects of property.

In the distinctions of subjects in concrete terms, however, one must beware of the danger of confusing individual property with private property and collective property with public property, even if in some respects they may coincide. The distinction between private property and public property exclusively entails that the goods forming their object belong respectively to persons of private law (even if moral) and of public law; the distinction between individual property and collective property, instead, denotes that the goods forming their object belong respectively to individuals in the former and to the collectivity as such in the latter. Collective property symbolizes and almost naturally culminates in its extremes in collectivism or communism, where no one is in concrete terms effectively the owner of one or more objects; whereas public property has subjects and objects that are well-distinguished and determined without any communion of goods.

Nevertheless, a certain resemblance, though very limited and always voluntary, to collective property (but not public property) is found wherever there is a communion of goods (that is, the property of determined goods that belong to several persons in common). In this communion, also called co-ownership or condominium, each participant has a right to the entire property, though limited precisely by the participation of others; in any case, it is characteristic of this institution that the goods are attributed to the individual co-owners not pro dicto, that is, partially, but in their entirety (arts. 1100-39).

VIII. OBJECT

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

IX. LIMITATIONS

It has already been noted that the right of property, while in principle entailing the broadest enjoyment and disposition of the goods that constitute it, does not necessarily exclude the right to self-imposed limitations by the owner, through more or less extensive but always voluntary agreements; by these, the utility of the thing is partially or entirely ceded, excluding, in any case, the title alone. Traditional examples of these limitations include the granting of use (art. 1021), usufruct (arts. 978-1020), habitation (art. 1022), predial servitudes (arts. 1027-99), emphyteusis (arts. 957-77), and the like, made to others over one’s own goods.

However, there are others that may be termed legal, as they are imposed by public authority for the achievement of the common good. These are contained in various legislations and vary in extent and severity. Italian law addresses the following: the owner may not engage in acts of emulation, that is, use his goods in a manner that, without any benefit to himself, causes harm to others (art. 833); all citizens may be expropriated of certain goods in the superior interest of the common good (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 circumstances, may be subjected to pooling (art. 837); objects of private property that have artistic, historical, archaeological, or ethnographic interest are subject to various limitations imposed by special laws (art. 839); urban real property is, in many centers, subject to detailed regulations under zoning plans (art. 869); the same applies to the construction and preservation of buildings in areas declared seismic (art. 872); other limitations include those

regarding distances in constructions (art. 873), in boundary walls or otherwise (arts. 874-76), in adjoining constructions (art. 877), in enclosure walls (art. 878), and other minor ones found in arts. 883-89; finally, various limitations concerning lights and views (arts. 900-907), drip (art. 908), and waters (arts. 909-21).

Of particular interest is the case of limitation not of property rights but of the right to property—or rather, to its quantitative extent. It is relatively easy to understand the State’s right to intervene to limit the absolute freedom of disposition that the owner generally has over his goods when these, especially if consisting of lands that could easily be destined for rational cultivation with consequent greater benefit to the common and social good, are abandoned or otherwise not exploited as they could be. More difficult, however, may seem the question of whether it is lawful for the State to impose limits on the extent of property, that is, to establish by law the quantity of real property, generally land, that a citizen may hold, and whether it is lawful for the State to expropriate those goods that exceed the established limits. In fact, in some nations, both types of limitation on the right of property have been imposed—for example, in Italy, where the principles have been incorporated into the Constitution itself (arts. 43-44) and are already being implemented through special laws concerning latifundia.

X. CESSATION

The factors that provoke or cause the loss of the right of property are various, and not all are due to the owner's will alone. First, this right is lost through legal transactions naturally or positively established for this purpose, principally sale, exchange, donation, and testament. Second, through the legal abandonment of the property object, that is, through derelictio, a deliberate and conscious act with the intent to definitively interrupt the moral-juridical bond that unites the object to the person, even if no one in fact succeeds to the right of property. Third, through acquisitive prescription or usucapion by third parties, operating independently of and in opposition to the will of the previous owner; the right of property, however, ceases in this case only for the previous owner when the new holder acquires II. Finally, through measures of public authority, that is, through expropriation for the purpose of compensating the creditors of an insolvent debtor or to make a work of public interest feasible.

XI. PROTECTION

The right of property is protected by three actions. The first is the action of revendicatio; through it, the holder may reclaim from whoever possesses or detains the thing that constitutes the object of his property, even if, after the claim, the latter has ceased to possess or detain it due to his own act. The action of revendicatio is imprescriptible, except, naturally, in the case of usucapion (Art. 948). The second is the action for the regulation of boundaries. When the boundary between two estates is uncertain, each of the owners may request that it be established in court; the court will take into account every kind of legitimate proof or adhere to the boundary delineated by cadastral maps (Art. 950). The third is the so-called negatoria action. Through it, the owner may act to have the non-existence of rights asserted by others over the thing declared, simultaneously requesting that any disturbances or molestations, if present, cease (Art. 949). The Code adds the action for the placement of boundary markers when these between contiguous estates have become unrecognizable (Art. 951), but this may be reduced to the second mentioned in Art. 950.

XII. CANON LAW

By prevailing divine-positive will, the Catholic Church and the Apostolic See possess the native right to freely and independently acquire, retain, and administer temporal goods, without dependence on civil authority, for the attainment of their ends (CIC, can. 1495 § 1). Likewise, individual churches and other juridical persons erected by ecclesiastical authority have the right, according to sacred canons, to acquire, retain, and administer temporal goods (ibid. § 2). Goods belonging to the Catholic Church, the Holy See, or another legitimately erected moral person—whether corporeal or otherwise—are ecclesiastical goods (can. 1497 § 1) and are called

sacred if destined for divine worship through consecration or blessing, precious if they possess notable intrinsic, artistic, or historical value (ibid. § 2). The Church may acquire temporal goods by all lawful means of natural and positive law permitted to others (can. 1499 § 1); all ecclesiastical goods, regardless of ownership, are subject to the supreme authority of the Apostolic See (ibid. § 2).

Among the ethnologically most archaic peoples (the Andamanese, the Negritos of the Philippines, the Semang of Malaysia, the Negrillos of Africa, the Fuegians of Tierra del Fuego, etc.), the territory for hunting and gathering is not the property of the individual person or the single family, but of the local group, ordinarily composed of 30-70 persons, blood relatives with their wives. Such property consists in the possession of approximately 30-70 km², on average, of land with defined boundaries, within which only the members of the group may exercise hunting and gathering. Members of other local groups may not access it except with the consent of the owning group, consent that is given only in the event that their respective territory is insufficient for hunting and gathering. Within the group, each individual family maintains its economic freedom and independence; each has its own hut, where the husband and wife bring their hunt and gather. They have the obligation to support their parents, who have become unable to work. The property of weapons and tools, clothing and ornaments that each has made or received, the boat one has built, the hut the woman has erected, is regulated in the sense that everything the husband, wife, or child has made with their own labor, as well as everything that has been given to them, is individual property. Thus, precisely at this first stage of civilization, notes Fr. W. Schmidt, one encounters the relatively greatest number of proprietors.

This right of property is conceived and harmonized with social duties toward the needy and is therefore imbued with love and altruistic sentiment. Among the peoples in question, there is great joy in making gifts to others. Of the aforementioned Fuegians, it has been written: "It seems they wish to possess only to be able to give." Koppers, their explorer, reports the following observation from them: "When you want to give something, give something good. He who receives the gift will notice it immediately and tell everyone that you are a good man."

Among some of these peoples, visits of friendship occur often in places distant several days' journey and last several days. During such visits, communal dances, games, hunts, and gatherings take place, and they compete in mutual gifts. They willingly lend their possessions without demanding compensation, even when the lender later finds himself in need, which could be satisfied by the loan. However, if the borrower has obtained a profit, he must share the gain with the owner, though rarely in equal parts. What is lent is always punctually returned. Explorers unanimously affirm the complete honesty of these peoples: they do not touch the explorer's belongings, even if left unattended; and items forgotten or lost by the explorer are returned to him, pursued and traced even over great distances.

The characteristic property of pastoral peoples is that of flocks and herds, from which they derive their means of subsistence. While gathering peoples cannot utilize animals unless they have killed them, pastoral peoples have every interest in the multiplication of livestock, for their wealth lies in large flocks. The increase or decrease of the flock or herd, beyond the skill and foresight of the herder, also depends on conditions independent of his will. Epidemics and natural disasters, such as prolonged droughts, can destroy entire flocks and reduce owners to poverty, forcing them to place themselves, in order to live, under the dependence of another, more fortunate family; thus, among herders, the first examples of servitude or slavery arise. From livestock, not only meat, milk with its products, and the blood of oxen (in Africa) for food are obtained, but also hides, and thus leather and felt, for clothing, tents, etc. All this is familial common property, except when it concerns the dowry brought by the bride, for in this case, it is personal property. Likewise, weapons and what belongs to the knight are personal property. Among pastoral peoples, the so-called bride price and dowry assume particular importance. The bride price can be 20-50 reindeer among the Samoyeds, 20-60 oxen among Africans, and 5 camels among Arabs, which are considered compensation for the expenses incurred by the family for the bride herself. Most often, the dowry consists of clothing and ornaments, utensils, and other objects of feminine use, or even some domestic animals, over which the bride herself often cannot dispose without consent. The value of the dowry for the Samoyeds and Tungus equals half the bride price, among horse breeders of Central Asia a quarter or half. He who steals must compensate tenfold, as among Tibetan herders. Since herders are nomadic, territory interests them less than it does gatherers, though they require it in greater measure for the grazing of herds and flocks. It is tribal property. All property passes by inheritance to the eldest son of the family patriarch.

What distinguishes gathering and pastoral peoples from agricultural and totemic peoples in terms of land property is, first of all, that for the latter, land becomes a place of fixed and stable residence. 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 his dwelling, his storehouse, and raises and maintains his domestic animals (the pig and poultry) there. 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, a right she transmits to her daughters, along with the house, tools, utensils, vessels, etc. Men possess the fruit trees they have planted, weapons, and personal items; when secret societies arise, these reserve for themselves the meeting place of the society, the house, masks, etc. During initiation feasts, women must provide the food. Totemic peoples know neither agriculture nor livestock breeding, but by perfecting tools and hunting methods, they have given rise to a hunting industry and a tribal organization, termed in ethnology the "higher type of hunting and social organization." The right of territorial property is expanded, as the tribe, as such, is recognized to have a superior collective right of property over all hunting and gathering territories. This is the case in Australia. The development of trades, industry, art, and commerce further accentuates the right of personal property.

If, as Fr. Schmidt has noted, even in gatherer civilizations the general legal sensibility had already come to admit that the producer of an object was ipso facto its owner, this awareness appears more distinct when an object is the fruit of individual craftsmanship. At the intersection of totemism with other civilizations, particularly with that of matriarchal agriculturalists, this pronounced consciousness of individual property also influences other directions. Fr. Schmidt has termed totemism "commercial totemism" as well, because both individual and group commerce develop within II. Among members of the same totem, great solidarity is observed.

In the course of the numerous and varied movements of peoples that have led to the formation and development of new civilizations, property has also taken on new forms. With the predominance of pastoral peoples over agricultural peoples, land ownership is assumed by the emperor, who then redistributes it among vassal princes, transforming farmers into serfs who, in this way, end up possessing only movable goods. Among the Annamites, the wife's and husband's goods are distinguished from the jointly acquired goods of the family, to which the spouses have equal rights. In the division of family goods among brothers, a special portion was reserved for the cult of the group's ancestors and entrusted to the eldest brother. Similarly, in Chinese Turkestan, the woman retains the right of ownership and use of her personal goods upon marriage. When she is no longer married, the usufruct passes to her parents; if she has children, it remains in the family. In the event of divorce, she reclaims not only her goods but also compensation for what was spent from them for the family community. Among the ancient Mexicans, there existed clan land ownership, ownership by individual families (transmissible to the firstborn), state-owned land administered by the sovereign and worked by servants and freemen (exempt from tribute), and finally temple property. The latter increased both through donations from nobles who became priests and through the allocation of parts of conquered territory following a victorious military expedition.

Primitive peoples do not consider the right of property absolute but regard it as a usufruct granted by the owner, who is the Creator; thus, gatherer peoples offer God the primitial sacrifice, that is, sacrificing to Him a portion—the first—of the prey just captured. Pastoral peoples offer the primitial sacrifice at certain times of the year, either by reserving for God a preferably white, unblemished animal from the flock and leaving it free with a distinctive mark so that others recognize it has been reserved for God and thus not usable by men, or by offering God freshly milked milk or a product thereof, such as humis (curdled milk). The primitial sacrifice is also frequently observed among agricultural peoples, such as the Lolo, the Po, and the ancient Chinese.

Consequently, among the most archaic peoples from an ethnological standpoint, the right of personal, familial, and communal property is clearly distinguished—a right that later assumes various forms in different civilizations and is also conceived in a social and altruistic function, founded on religion, that is, as a right derived from God. From what property is among present-day gatherer peoples, it is just and legitimate to deduce that, in essence, it could not have been different in the earliest stages of humanity. Thus, Fr. Schmidt was recently able to conclude: « This moral chaos of the beginnings never existed; it was merely a postulate necessarily derived from presumptuous progressive evolutionism. The reality ascertained through exact investigations among the very oldest peoples has decisively refuted this postulate. »

teitswisch., 45 (1930), pp. 401-408; W. Schmidt, Das Eigentum auf den ältesten Stufen der Menschheit, 3 vols., Münster i. W. 1937; R. Thurnwald, Ethnol. Rechtforschung, in Lehrb. der Völkerkunde, ed. by K. Th. Preuss, 2nd ed., Berlin 1939, pp. 280-306; L. Vannicelli, La famiglia cinese. Studio etnol., Milan 1943, p. 173 and passim; W. Schmidt, Das Eigentum im Primärkulturkreis der Herdenreichschärer Asiens und Afrikas, in Scientia, 4th series, 37 (1943), pp. 94-106; W. Koppers, La religione dell'uomo primitivo, ibid. 1945, p. 110; id., Der Urmensch und sein Weltbild, Vienna 1949, pp. 10 ff., 192; W. Schmidt, Das Menschenbild der Urkultur, in Wissenschaft und Weltbild, II, Vienna 1949; id., Geist und Ethos des Menschen der Urkultur, ibid. 1949; M. Hermanns, Die Nomaden von Tibet. Die socialwirtschaft. Grundlagen der Hirtsukulturen, in A-Mdo und von Innerasien. Ursprung und Entwicklung der Viehzucht, ibid. 1949, pp. 220-27. Luigi Vannicelli