The definition of property is a tricky thing - both on individual and collective levels

Property- a fundamental notion of existence, one might say. During the recent months I traveled with Maureen through the jungles of Sarawak. As in every other place on this planet, there is a fight for real-estate property, and rights regarding the use of land. The most remote patch of land is either owned, of fought for. It made me think about the concept of property, and I’m going to tell you why.

“Property is, in our culture, a hereditary issue,” she said. “Take my grandmother. She went into the virgin jungle, and cleared the land by setting fire. In the clearing she planted rice – this sufficed to register her rights toward her peers. Everybody knew it was her land, and there was no competition, or feudal fighting for the land. Over the years, from season to season, she also planted fruit trees. These grew and reinforced her rights to the land – a little hut had the same effect. Rights were automatically transferred to her offspring. But now, since I left the village, my cousins took Grandma’s hereditary rights, registered the land with the land survey department under their names, and I was left with nothing.”

In the above case, problems occurred because hereditary rights (obtained from her Grandma) were poorly defined, and remained unregistered – until a cousin or nephew would grab the opportunity and register the land under his or her name. It shows how dangerously fragile property rights can be, if vested only in the memory of people. The example from Maureen’s native Borneo culture also highlights a few interesting, if not remarkable points, which also frequently are seen in western domains of property law:
• That property rights vested in a clan may be stronger than rights granted to an individual;
• That property rights need to be maintained, and to be refreshed with every new vegetation cycle: there is a dynamic element in the validation of right;
• That individual control of property or property rights can only be enforced whilst being on the spot, or being an active part of the community that controls the land belonging to a larger community, or clan area;
• That individual property or property rights are usurped by those who stay in the village area, whilst those who seek their luck elsewhere gradually loose their hereditary rights in the eyes of the residing community, the only guardian of law.

Needless to say, that the concept of individual property or ownership has no single or universally accepted definition. Like other foundational concepts which have great weight in public discourse, popular usage varies broadly. This said I have found one common element in the many cultures I could study: property rights are means to control nature, one’s environment and, ultimately individual and collective prosperity. Property also refers to the power to control, or to destroy. The 3-mile zone (=territorial waters, now mostly extended to 200 miles) along the shores was, until recently, the range of guns able to destroy a ship that traveled along the shores. In other words: if I can destroy you, you must obey my law.

Encyclopaedia Britannica gives the following ‘property’ definition: an object of legal rights, which embraces possessions or wealth collectively, frequently with strong connotations of individual ownership. In law the term refers to the complex of jural relationships between and among persons with respect to things. The things may be tangible, such as land or goods, or intangible, such as stocks and bonds, a patent, or a copyright. Every known legal system has rules that deal with the relations among persons with respect to (at least) tangible things .Because property law deals with the allocation, use, and transfer of wealth and objects of wealth, it must reflect the economy, family structure, and politics of the society in which it is found.

In classical Roman law (c. AD 1–250), the sum of rights, privileges, and powers that a legal person could have in a thing was called dominium, or proprietas (ownership). The classical Roman jurists do not state that their system tends to ascribe proprietas to the current possessor of the thing but that it did so is clear enough. Once the Roman system had identified the proprietarius (the owner), it was loath to let him convey anything less than all the rights, privileges, and powers that he had in the thing.

Papinianus was, beyond any doubt, the most influencial authority of property law in classic Rome. His books were written in precise and elegant Latin. He was born AD 140, probably in Emesa, Syria, and died in 212. Aemilius Papinianus Romanus posthumously became the definitive authority on Roman law, possibly because his moral high-mindedness and precision was congenial to the worldview of the Christian rulers of the postclassical Roman Empire. A lot of modern Civil Law is still influenced by Papinian’s logic.

The medieval English legal system similarly showed the tendency at critical points to agglomerate property rights in a single individual. A notion of property in land emerged at the end of the 12th century in England from a mass of partly discretionary, partly customary, feudal rights and obligations. What began as essentially an appellate jurisdiction, offered by the king in his court to ensure that a feudal lord did right by his men, ended with the free tenant being the owner of the land, in a quite modern sense, with the lord's rights limited to receipt of money dues.

In Western law today, most tangible things may be the object of property, although certain kinds of natural resources, such as wild animals, water, and minerals, may be the object of special rules, particularly as to how they are to be acquired. Because Western law gives great emphasis to the concept of possession, it has had considerable difficulty in making intangible things the object of property.

Where does this lead? Property law is, in many ways, a subject which describes the interaction of individuals, if not entire communities. Maintaining property rights means maintaining a functioning society. Let me finish with an anecdote. Whilst working for my PHD in geology in rural Austria, an inn-owner lady told me: “if you come to our village as a tourist, of course they will smile to you. If you rent property, you are a welcome guest. But let me tell you this: as long as you don’t own a meadow, a piece of land in our village area, you’re nothing in the eyes of the locals.”

References: Encyclopedia Britannica 2003; www.wikipedia.org

©2005 by Franz L Kessler