The concept of property has undergone through the ages many changes but their examination does not fall within the scope of this paper. As observed by ...
The concept of property has undergone through the ages many changes but their examination does not fall within the scope of this paper.
As observed by Paton the term “property” has “a bewildering variety of uses”. It may reflect the legal relationship of a person to a particular object in the sense of a right of ownership or title or it may be related to the subject matter or such right itself.
In other respects the expression “property” may be used in its widest sense including all of a person’s legal rights of whatever description, what the Romans called a “universitas rerum” and the Greeks “periousia”.
The classical from of the right of property comprised a power to possess and use the object of property, to enjoy it and to destroy it, which in the Roman law was expressed as “jus utendi. jus fruendi and jus abutendi” although certain restrictions were put to the last one. This right was considered as one of the natural rights brought by man at his birth, which could not in any way be interfered with except in certain restricted cases specifically provided by law.
That was the concept permeating the various declarations and constitutions during the French revolution.
“Les hommes naissent at demeurent libres et egaux en droit …. Les droits sont … la propriete.”
declared art. 1 et 2 of the declaration de droits de l’homme et du citoyen of 1789 and repeated all subsequent declarations and constitutions. In this respect the provision of article 8 of the Declaration of 1793 is noteworthy.
“La surete consiste dans la protection accordee par la societe a chacun des ses members par la conservation de sa personne, de ses droits et de sa propriete.”
The Code Civil on the other hand in its article 544 defines the right of property on similar lines.
“La propriete est le droit de jouir et disposer des choses de la maniere la plus absolute, pourvu qu’ on n’en fasse pas un usage prohibe par la loi et les reglements.”
In the United States of America the right to private property under the influence of Locke was recognized as a natural individual right by the various Bills of Rights and the Fifth Amendment of the Constitution.
This individualistic approach, however, to the right of property has changed to-day. The right of property instead of being considered as a natural individual right inviolable, sacrosanct and imprescriptible, which every individual brings with him at birth, is looked upon as a social function imposing obligations also on the individual for the benefit of the society of which he is a member.
The right of property, under this new concept, is created and regulated by law for the social benefit and expresses a relationship not between individuals and things but between the individuals themselves. This new concept was declared by many constitutional texts after the First World War.
Reference may be made to article 153 of the constitution of Weimar, repeated in article 14 of the constitution of the Federal Republic of Germany, which is as follows:
“(1) The rights of ownership and of inheritance are guaranteed. Their contents and limits shall be determined by the laws.
(2) Property imposes duties. Its use should also serve the public weal”
“Also the constitution of France of 1949 in its preamble after reaffirming the rights and freedoms of man and citizen consecrated by the Declaration of Rights of 1789 proclaims that”
“All property and all enterprises that now have or subsequently shall have the character of a national public service or a monopoly in fact must become the property of the community.”
By the preamble to the constitution of France of 1958 to 1963 the attachment of the French people to the Rights of Man and the principles of national sovereignty, reaffirmed and complemented by the preamble of the constitution of 1946, was proclaimed.
The new concept of property, amounting to a social function imposing obligations, was adopted by many post Second War constitutions.