مال، در حقوق به هر چه قابل تملک و مبادله باشد گفته میشود، در یک دید کلی هر چیزی که به وجه رایج کشور قابل تقویم باشد و ارزش اقتصادی داشته باشد مال میباشد، که در یک تقسیمبندی کلی به استناد مفاد مواد ۱۱ به بعد قانون مدنی اموال منقول (قابل جابجایی بدون آسیب دیدن) و اموال غیرمنقول (که بارزترین وجه آن زمین و ساختمان است) تقسیم میگردد. تفاوتهایی در وضعیت حقوقی هر یک از این دو در قوانین ایران وجود دارد.
تعریف مال در اقتصاد اسلامی[ویرایش]
مال عبارت است از چیزی که دارای ارزش مبادلاتی باشد. در اینجا توضیح چند نکته را در رابطه با تعریف فوق بیان میکنیم:
ارزش مصرفی و مبادلاتی[ویرایش]
برای کالا دو نوع ارزش وجود دارد:
«ارزش مصرفی» این است که: بهطور مستقیم- بالفعل یا بالقوه- نیازی از نیازها را تأمین کند؛ و به عبارت دیگر: فایدهای داشته باشد.
«ارزش مبادلاتی» نیز عبارت است از این که: آن کالا به گونهای باشد که مردم حاضر باشند در برابر آن، چیزی بپردازند؛ و این ارزش در صورتی به وجود میآید که علاوه برداشتن فایده، از نظر فراوانی در حدی نباشد که دیگر، تقاضایی نسبت به آن وجود نداشته باشد.
با توجه به توضیح فوق روشن میگردد که وقتی گفته میشود مال، چیزی است که دارای ارزش مبادلاتی باشد، یعنی.
اولاً: نیازی را تأمین کند؛ بنابراین نخهای مصرف شده در لباسی که آن را شکافتهاند و میوههای خراب شده چون به درد نمیخورد و به تعبیر فقها منفعت عقلایی ندارد، مال نیست.
ثانیاً: به حدی زیاد نباشد که بدون کار یا گرفتن از دیگران، در دسترس همه باشد؛ و لذا هوا و آفتاب در عین حال که نیاز اساسی را تأمین میکنند و دارای ارزش مصرفی هستند، مال نمیباشند؛ که از آن در کتابهای فقهی به «عزّة الوجود» تعبیر میشود.
ارزش و فایده از امور نسبی است[ویرایش]
لزومی ندارد که حتماً کالایی برای همه و در کلیهٔ نقاط دارای فایده باشد تا مال قلمداد شود. ممکن است چیزی برای یک منطقه یا گروه خاصی به دلیل اینکه نیاز خاص آنها را تأمین میکند، ارزش داشته باشد ولی برای منطقهٔ دیگری چنین نباشد.
و تعبیر فایدهٔ عقلایی که در متون فقهی آمدهاست؛ یعنی منفعتی که عرف (عقلا) به آن توجه کنند و بیانگر همین حالت متغیر مال است که ممکن است نسبت به شرایط جغرافیایی، فرهنگی، تمدنها و زمانها و … متفاوت باشد؛ و به عبارت دیگر: تعبیر نسبی بودن مال را میرساند.
به عنوان مثال: یک مؤسسهٔ داروسازی، حیواناتی را که از نظر نوع مردم بیفایده است خریداری کرده و در برابر آن پول میپردازد. یا اینکه عکس فردی برای فرزندانش ارزشمند است و لذا آنان حاضر میشوند برای دستیابی به آن عکس پول قابل توجهی بپردازند، در حالی که دیگران هیچ گونه تقاضا و تمایل خاصّی به آن ندارند و لذا هرگز حاضر نیستند در برابر آن وجهی بپردازند.
عمومیت ارزش مصرفی[ویرایش]
تأمین نیاز و به درد خوردن، که ملاک مالیّت است، انحصاری به نیازهای اولیه یا ضروری ندارد، همانطور که مواد غذایی و پوشاک و مسکن مال است، تابلوی نقاشی، یک دسته گل، کار کارگر و … هم به دلیل اینکه به درد میخورد و فایده عقلایی دارد، مال قلمداد میشود.
بیاعتبار شدن بعضی از ارزشها در مکتب[ویرایش]
برخی از کالاها در روابط اجتماعی و اقتصادی - صرفنظر از مذهب - چون هم فایده دارد و هم به گونهای است که مردم حاضرند در برابرش پول بدهند، مال شناخته میشود ولی مکتب (شارع) استفادهٔ از آن را ممنوع ساختهاست. مانند مشروبات الکلی و وسایل قمار، لذا اینجا گفتهاند اینها مال نیست.
ولی با توجه به این جهت که اصولاً در اینکه چه چیزی مال است دین اصطلاح خاصی ندارد. همانطور که برخی از محققین یادآور شدهاند بهتر است اصطلاح خاصی گفته شود: چون شارع استفاده از کالایی را ممنوع ساخته و فایده و ارزش آن را نادیده گرفته پس آثار مالیّت را در آنها الغا کردهاست و به اصطلاح فقهی، حکماً مال نمیباشد. مگر اینکه حرمت و ممنوعیت با توجه به پایبند بودن مردم نسبت به حکم شرع، سبب شده باشد که نسبت به کالای ممنوعه بهطور کلی تقاضایی وجود نداشته و از ارزش بیفتد، بهطوریکه دیگر هیچکس سراغ آن نرفته و حاضر نباشد در برابر آن پول بپردازد. در این فرض در چنین محیطی، آن کالای ممنوعه مال نمیباشد.
انواع مال در اقتصاد اسلامی[ویرایش]
مال دارای انواع مختلفی است که از یک نظر به عین، منفعت و حق و از جهت دیگر به عینی و اعتباری تقسیم میگردد که به ترتیب توضیحاتی در مورد هر یک داده میشود:
مالی است که دارای وجود مادّی بوده و با حواس ظاهر، قابل درک باشد، و خود بهطور مستقل مورد داد و ستد قرار گیرد. این مال در مبادلات اقتصادی، خود دارای دو قسم است:
الف- «وجود شخصی»: آنچه دارای وجود عینی و فیزیکی است و در خارج ذهن، وجود خارجی دارد مانند کالایی که در مبادلات نقدی داد و ستد میشود مثل: ماشین، فرش و رادیو.
ب- «وجود کلّی»: یعنی کالایی که در روابط مبادلاتی، آن را اعتبار میکنند و یک طرف، نسبت به آن متعهد میگردد؛ و بر اساس همین تعهد، مبادله انجام میشود. مثل اینکه در معاملات «سلف» که تحویل کالا، مدتدار و پرداخت پول به صورت نقد، انجام میگیرد کالایی که هنوز حتی ممکن است تولید نشده باشد خریداری میگردد. به این صورت که بهای آن پرداخت میشود و فروشنده تعهد مینماید در زمانی مشخصی، کالا را تحویل دهد. مثل تحویل گندم به هنگام درو یا تحویل اتومبیل پس از تولید. در اینجا آنچه خریداری و مبادله میشود در عین حال که جنبهٔ فیزیکی و مادی دارد و دارای ابعاد سهگانه میباشد، اما تعیّن خارجی آن مورد توجه نیست بلکه به صورت کلّی در «ذمّه و عهده» ی اعتبار شده و موضوع مبادله میباشد که در اصطلاح به آن «کلی فی الذمّه» میگویند.
عبارت است از فایده و ارزش مصرفی که از یک موجود خارجی به دست میآید؛ و به عبارت دیگر: فایدهای که وابسته به کالا و عین میباشد. این نوع مال نیز چند قسم است:
الف- فایده و خاصیتی که به تدریج به دست آمده و از بین میرود مثل امکان بهرهبرداری از مسکن یا اتومبیل.
ب- فایدهای که به تدریج از «عین» به دست میآید اما کمکم متراکم شده و به صورت کالای خاصّی درمیآید مانند: میوههای درخت در رابطه با باغی که آن باغ مورد اجاره است. در اینجا میوهها اگر چه به صورت یک کالاست اما نتیجه و نموّ عین (درخت) و وابسته به آن میباشد.
ج- کار تولیدی یا خدماتی نیز نوع دیگر منفعت است و مال محسوب میشود؛ زیرا میتواند تأمینکنندهٔ نیازهای مختلف باشد (ارزش مصرفی دارد) و به گونهای است که مردم حاضرند در برابرش پول بپردازند و به اصطلاح ارزش کامل مبادلاتی دارد.
در کتاب «البیع» در این زمینه چنین آمدهاست:
«عمل انسانی که آزاد است دارای حرفه باشد یا نه «مال» بهشمار میآید؛ زیرا ضروری است که دوختن لباس و کندن چاه، مالی است که عقلا حاضرند در برابر آن پول بپردازند؛ و مال نیز چیزی نیست مگر آنچه مورد تقاضای عقلا باشد. البته مالیّت کار به اعتبار این است که در آینده ارائه میشود ولی انجام دادن آینده که مورد انتظار است قید مالیّت نیست بلکه سبب مال بهشمار آمدن میباشد».
یکی از نتایج مال بودن نیروی کار که در فقه به عنوان منفعت شناخته میشود در موضوع «ضمان» روشن میگردد. به عنوان مثال کسی که مانع کار و کسب کارگری میگردد و او را از تلاش اقتصادیش بازمیدارد بر اساس مال بودن توان و قوهٔ کار، ضامن بودن وی مطرح میشود که میبایست خسارت بازماندن کارگر را از کار جبران نماید. در صورتی که اگر توانایی بر کار، خود «مال» نباشد ضمانت و مسؤول جبران خسارت بودن، معنی ندارد؛ زیرا موضوع «ضمانت» مال است.
البته بسیاری از فقها ضامن بودن کسی که مانع اشتغال دیگری میشود را نپذیرفتهاند؛ ولی نفی ضمان در این فرض از نظر آنها به خاطر فقدان یکی دیگر از شرایط ضمان است نه اینکه توان و نیروی انسانی، خود مالیّت نداشته باشد.
بعضی از حقوق نیز مال بهشمار میایند؛ زیرا ارزش اقتصادی دارند مانند «حق تحجیر» که این قسم در بحث حق توضیح داده شدهاست.
«مال عینی و اعتباری»: ارزش مصرفی و فایده داشتن که منسأ مال بهشمار آمدن اشیا میگردد، منحصر به این جهت نیست که مانند نان و گوشت ارزش و فایدهٔ فیزیکی و عینی داشته باشد بلکه گاهی اعتبار و قراردادهای اجتماعی سبب میشود که عنوان مالیّت از آن انتزاع شده و بر آن منطبق گردد. مانند پولهای رایج که اعتبار دادن حکومت و تشکیلات پولی، سبب میشود که اینها وسیله پرداختها و تأمین نیازها گردد وگرنه خود از نظر خارجی مانند نان و مسکن نیست که فایدهٔ قابل توجهی داشته باشد.
و شاهد بر اعتباری بودن ارزش آنها این است که در شرایط سیاسی اجتماعی مختلف، مثل زمان جنگ و صلح، ثبات و تزلزل حکومت، ارزش آنها دستخوش نوسان قرار میگیرد. بر این اساس باید گفت: مال از یک نظر به عینی و اعتباری تقسیم میگردد.
Property, in the abstract, is what belongs to or with something, whether as an attribute or as a component of said thing. In the context of this article, it is one or more components (rather than attributes), whether physical or incorporeal, of a person's estate; or so belonging to, as in being owned by, a person or jointly a group of people or a legal entity like a corporation or even a society. Depending on the nature of the property, an owner of property has the right to consume, alter, share, redefine, rent, mortgage, pawn, sell, exchange, transfer, give away or destroy it, or to exclude others from doing these things, as well as to perhaps abandon it; whereas regardless of the nature of the property, the owner thereof has the right to properly use it (as a durable, mean or factor, or whatever), or at the very least exclusively keep it.
Property that jointly belongs to more than one party may be possessed or controlled thereby in very similar or very distinct ways, whether simply or complexly, whether equally or unequally. However, there is an expectation that each party's will (rather discretion) with regard to the property be clearly defined and unconditional, so as to distinguish ownership and easement from rent. The parties might expect their wills to be unanimous, or alternately every given one of them, when no opportunity for or possibility of dispute with any other of them exists, may expect his, her, its or their own will to be sufficient and absolute.
The Restatement (First) of Property defines property as anything, tangible or intangible whereby a legal relationship between persons and the state enforces a possessory interest or legal title in that thing. This mediating relationship between individual, property and state is called a property regime.
In sociology and anthropology, property is often defined as a relationship between two or more individuals and an object, in which at least one of these individuals holds a bundle of rights over the object. The distinction between "collective property" and "private property" is regarded as a confusion since different individuals often hold differing rights over a single object.
Important widely recognized types of property include real property (the combination of land and any improvements to or on the land), personal property (physical possessions belonging to a person), private property (property owned by legal persons, business entities or individual natural persons), public property (state owned or publicly owned and available possessions) and intellectual property (exclusive rights over artistic creations, inventions, etc.), although the last is not always as widely recognized or enforced. An article of property may have physical and incorporeal parts. A title, or a right of ownership, establishes the relation between the property and other persons, assuring the owner the right to dispose of the property as the owner sees fit.
Often property is defined by the code of the local sovereignty, and protected wholly or more usually partially by such entity, the owner being responsible for any remainder of protection. The standards of proof concerning proofs of ownerships are also addressed by the code of the local sovereignty, and such entity plays a role accordingly, typically somewhat managerial. Some philosophers[who?] assert that property rights arise from social convention, while others find justifications for them in morality or in natural law.
Various scholarly disciplines (such as law, economics, anthropology or sociology) may treat the concept more systematically, but definitions vary, most particularly when involving contracts. Positive law defines such rights, and the judiciary can adjudicate and enforce property rights.
According to Adam Smith, the expectation of profit from "improving one's stock of capital" rests on private property rights. Capitalism has as a central assumption that property rights encourage their holders to develop the property, generate wealth, and efficiently allocate resources based on the operation of markets. From this has evolved the modern conception of property as a right enforced by positive law, in the expectation that this will produce more wealth and better standards of living. However, Smith also expressed a very critical view on the effects of property laws on inequality:
In his text The Common Law, Oliver Wendell Holmes describes property as having two fundamental aspects. The first, possession, can be defined as control over a resource based on the practical inability of another to contradict the ends of the possessor. The second, title, is the expectation that others will recognize rights to control resource, even when it is not in possession. He elaborates the differences between these two concepts, and proposes a history of how they came to be attached to persons, as opposed to families or to entities such as the church.
Both communism and some kinds of socialism have also upheld the notion that private ownership of capital is inherently illegitimate. This argument centers mainly on the idea that private ownership of capital always benefits one class over another, giving rise to domination through the use of this privately owned capital. Communists do not oppose personal property that is "hard-won, self-acquired, self-earned" (as the Communist Manifesto puts it) by members of the proletariat. Both socialism and communism distinguish carefully between private ownership of capital (land, factories, resources, etc.) and private property (homes, material objects and so forth).
Types of property
Most legal systems distinguish between different types of property, especially between land (immovable property, estate in land, real estate, real property) and all other forms of property—goods and chattels, movable property or personal property, including the value of legal tender if not the legal tender itself, as the manufacturer rather than the possessor might be the owner. They often distinguish tangible and intangible property. One categorization scheme specifies three species of property: land, improvements (immovable man-made things), and personal property (movable man-made things).
In common law, real property (immovable property) is the combination of interests in land and improvements thereto, and personal property is interest in movable property. Real property rights are rights relating to the land. These rights include ownership and usage. Owners can grant rights to persons and entities in the form of leases, licenses and easements.
Throughout the last centuries of the second millennium, with the development of more complex theories of property, the concept of personal property had become divided[by whom?] into tangible property (such as cars and clothing) and intangible property (such as financial instruments, including stocks and bonds; intellectual property, including patents, copyrights and trademarks; digital files; communication channels; and certain forms of identifier, including Internet domain names, some forms of network address, some forms of handle and again trademarks).
Treatment of intangible property is such that an article of property is, by law or otherwise by traditional conceptualization, subject to expiration even when inheritable, which is a key distinction from tangible property. Upon expiration, the property, if of the intellectual category, becomes a part of public domain, to be used by but not owned by anybody, and possibly used by more than one party simultaneously due the inapplicability of scarcity to intellectual property. Whereas things such as communications channels and pairs of electromagnetic spectrum band and signal transmission power can only be used by a single party at a time, or a single party in a divisible context, if owned or used at all. Thus far or usually those are not considered property, or at least not private property, even though the party bearing right of exclusive use may transfer that right to another.
In many societies the human body is considered property of some kind or other. The question of the ownership and rights to one's body arise in general in the discussion of human rights, including the specific issues of slavery, conscription, rights of children under the age of majority, marriage, abortion, prostitution, drugs, euthanasia and organ donation.
Of the following, only sale and at-will sharing involve no encumbrance.
Issues in property theory
What can be property?
The two major justifications given for original property, or the homestead principle, are effort and scarcity. John Locke emphasized effort, "mixing your labor" with an object, or clearing and cultivating virgin land. Benjamin Tucker preferred to look at the telos of property, i.e. What is the purpose of property? His answer: to solve the scarcity problem. Only when items are relatively scarce with respect to people's desires do they become property. For example, hunter-gatherers did not consider land to be property, since there was no shortage of land. Agrarian societies later made arable land property, as it was scarce. For something to be economically scarce it must necessarily have the exclusivity property—that use by one person excludes others from using it. These two justifications lead to different conclusions on what can be property. Intellectual property—incorporeal things like ideas, plans, orderings and arrangements (musical compositions, novels, computer programs)—are generally considered valid property to those who support an effort justification, but invalid to those who support a scarcity justification, since the things don't have the exclusivity property (however, those who support a scarcity justification may still support other "intellectual property" laws such as Copyright, as long as these are a subject of contract instead of government arbitration). Thus even ardent propertarians may disagree about IP. By either standard, one's body is one's property.
From some anarchist points of view, the validity of property depends on whether the "property right" requires enforcement by the state. Different forms of "property" require different amounts of enforcement: intellectual property requires a great deal of state intervention to enforce, ownership of distant physical property requires quite a lot, ownership of carried objects requires very little, while ownership of one's own body requires absolutely no state intervention. Some anarchists don't believe in property at all.
Many things have existed that did not have an owner, sometimes called the commons. The term "commons," however, is also often used to mean something quite different: "general collective ownership"—i.e. common ownership. Also, the same term is sometimes used by statists to mean government-owned property that the general public is allowed to access (public property). Law in all societies has tended to develop towards reducing the number of things not having clear owners. Supporters of property rights argue that this enables better protection of scarce resources, due to the tragedy of the commons, while critics argue that it leads to the 'exploitation' of those resources for personal gain and that it hinders taking advantage of potential network effects. These arguments have differing validity for different types of "property"—things that are not scarce are, for instance, not subject to the tragedy of the commons. Some apparent critics advocate general collective ownership rather than ownerlessness.
Things that do not have owners include: ideas (except for intellectual property), seawater (which is, however, protected by anti-pollution laws), parts of the seafloor (see the United Nations Convention on the Law of the Sea for restrictions), gases in Earth's atmosphere, animals in the wild (although in most nations, animals are tied to the land. In the United States and Canada wildlife are generally defined in statute as property of the state. This public ownership of wildlife is referred to as the North American Model of Wildlife Conservation and is based on The Public Trust Doctrine.), celestial bodies and outer space, and land in Antarctica.
The nature of children under the age of majority is another contested issue here. In ancient societies children were generally considered the property of their parents. Children in most modern societies theoretically own their own bodies but are not considered competent to exercise their rights, and their parents or guardians are given most of the actual rights of control over them.
In many ancient legal systems (e.g. early Roman law), religious sites (e.g. temples) were considered property of the God or gods they were devoted to. However, religious pluralism makes it more convenient to have religious sites owned by the religious body that runs them.
Ownership of land can be held separately from the ownership of rights over that land, including sporting rights, mineral rights, development rights, air rights, and such other rights as may be worth segregating from simple land ownership.
Who can be an owner?
Ownership laws may vary widely among countries depending on the nature of the property of interest (e.g. firearms, real property, personal property, animals). Persons can own property directly. In most societies legal entities, such as corporations, trusts and nations (or governments) own property.
In many countries women have limited access to property following restrictive inheritance and family laws, under which only men have actual or formal rights to own property.
In the Inca empire, the dead emperors, who were considered gods, still controlled property after death.
Whether and to what extent the state may interfere with property
In 17th-century England, the legal directive that nobody may enter a home, which in the 17th-century would typically have been male owned, unless by the owners invitation or consent, was established as common law in Sir Edward Coke’s Institutes of the Lawes of England. "For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge]." It is the origin of the famous dictum, “an Englishman’s home is his castle”. The ruling enshrined into law what several English writers had espoused in the 16th-century. Unlike the rest of Europe the British had a proclivity towards owning their own homes. British Prime Minister William Pitt, 1st Earl of Chatham defined the meaning of castle in 1763, "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter."
A principle exported to the United States, under U.S. law the principal limitations on whether and the extent to which the State may interfere with property rights are set by the Constitution. The "Takings" clause requires that the government (whether state or federal—for the 14th Amendment's due process clause imposes the 5th Amendment's takings clause on state governments) may take private property only for a public purpose, after exercising due process of law, and upon making "just compensation." If an interest is not deemed a "property" right or the conduct is merely an intentional tort, these limitations do not apply and the doctrine of sovereign immunity precludes relief. Moreover, if the interference does not almost completely make the property valueless, the interference will not be deemed a taking but instead a mere regulation of use. On the other hand, some governmental regulations of property use have been deemed so severe that they have been considered "regulatory takings." Moreover, conduct sometimes deemed only a nuisance or other tort has been held a taking of property where the conduct was sufficiently persistent and severe.
There exist many theories of property. One is the relatively rare first possession theory of property, where ownership of something is seen as justified simply by someone seizing something before someone else does. Perhaps one of the most popular is the natural rights definition of property rights as advanced by John Locke. Locke advanced the theory that God granted dominion over nature to man through Adam in the book of Genesis. Therefore, he theorized that when one mixes one's labor with nature, one gains a relationship with that part of nature with which the labor is mixed, subject to the limitation that there should be "enough, and as good, left in common for others." (see Lockean proviso)
From the RERUM NOVARUM, Pope Leo XIII wrote "It is surely undeniable that, when a man engages in remunerative labor, the impelling reason and motive of his work is to obtain property, and thereafter to hold it as his very own."
Anthropology studies the diverse systems of ownership, rights of use and transfer, and possession under the term "theories of property." Western legal theory is based, as mentioned, on the owner of property being a legal person. However, not all property systems are founded on this basis.
In every culture studied ownership and possession are the subject of custom and regulation, and "law" where the term can meaningfully be applied. Many tribal cultures balance individual ownership with the laws of collective groups: tribes, families, associations and nations. For example, the 1839 Cherokee Constitution frames the issue in these terms:
Communal property systems describe ownership as belonging to the entire social and political unit. Such arrangements can under certain conditions erode open access resources. This development has been critiqued by the tragedy of the commons.
Corporate systems describe ownership as being attached to an identifiable group with an identifiable responsible individual. The Roman property law was based on such a corporate system. In a well-known paper that contributed to the creation of the field of law and economics in the late 1960s, the American scholar Harold Demsetz described how the concept of property rights makes social interactions easier:
Different societies may have different theories of property for differing types of ownership. Pauline Peters argued that property systems are not isolable from the social fabric, and notions of property may not be stated as such, but instead may be framed in negative terms: for example the taboo system among Polynesian peoples.
Property in philosophy
In medieval and Renaissance Europe the term "property" essentially referred to land. After much rethinking, land has come to be regarded as only a special case of the property genus. This rethinking was inspired by at least three broad features of early modern Europe: the surge of commerce, the breakdown of efforts to prohibit interest (then called "usury"), and the development of centralized national monarchies.
The Ten Commandments shown in Exodus 20:2–17 and Deuteronomy 5:6–21 stated that the Israelites were not to steal, but the connection between Bronze Age concepts of theft and modern concepts of property is suspect.
Aristotle, in Politics, advocates "private property."  He argues that self-interest leads to neglect of the commons. "[T]hat which is common to the greatest number has the least care bestowed upon it. Every one thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual."
In addition he says that when property is common, there are natural problems that arise due to differences in labor: "If they do not share equally enjoyments and toils, those who labor much and get little will necessarily complain of those who labor little and receive or consume much. But indeed there is always a difficulty in men living together and having all human relations in common, but especially in their having common property." (Politics, 1261b34)
Cicero held that there is no private property under natural law but only under human law. Seneca viewed property as only becoming necessary when men become avarice. St. Ambrose later adopted this view and St. Augustine even derided heretics for complaining the Emperor could not confiscate property they had labored for.
Thomas Aquinas (13th century)
The canon law Decretum Gratiani maintained that mere human law creates property, repeating the phrases used by St. Augustine. St. Thomas Aquinas agreed with regard to the private consumption of property but modified patristic theory in finding that the private possession of property is necessary. Thomas Aquinas concludes that, given certain detailed provisions,
Thomas Hobbes (17th century)
The principal writings of Thomas Hobbes appeared between 1640 and 1651—during and immediately following the war between forces loyal to King Charles I and those loyal to Parliament. In his own words, Hobbes' reflection began with the idea of "giving to every man his own," a phrase he drew from the writings of Cicero. But he wondered: How can anybody call anything his own? He concluded: My own can only truly be mine if there is one unambiguously strongest power in the realm, and that power treats it as mine, protecting its status as such.
James Harrington (17th century)
A contemporary of Hobbes, James Harrington, reacted to the same tumult in a different way: he considered property natural but not inevitable. The author of Oceana, he may have been the first political theorist to postulate that political power is a consequence, not the cause, of the distribution of property. He said that the worst possible situation is one in which the commoners have half a nation's property, with crown and nobility holding the other half—a circumstance fraught with instability and violence. A much better situation (a stable republic) will exist once the commoners own most property, he suggested.
In later years, the ranks of Harrington's admirers included American revolutionary and founder John Adams.
Robert Filmer (17th century)
Another member of the Hobbes/Harrington generation, Sir Robert Filmer, reached conclusions much like Hobbes', but through Biblical exegesis. Filmer said that the institution of kingship is analogous to that of fatherhood, that subjects are but children, whether obedient or unruly, and that property rights are akin to the household goods that a father may dole out among his children—his to take back and dispose of according to his pleasure.
John Locke (17th century)
In the following generation, John Locke sought to answer Filmer, creating a rationale for a balanced constitution in which the monarch had a part to play, but not an overwhelming part. Since Filmer's views essentially require that the Stuart family be uniquely descended from the patriarchs of the Bible, and since even in the late 17th century that was a difficult view to uphold, Locke attacked Filmer's views in his First Treatise on Government, freeing him to set out his own views in the Second Treatise on Civil Government. Therein, Locke imagined a pre-social world, each of the unhappy residents of which are willing to create a social contract because otherwise "the enjoyment of the property he has in this state is very unsafe, very unsecure," and therefore the "great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property." They would, he allowed, create a monarchy, but its task would be to execute the will of an elected legislature. "To this end" (to achieve the previously specified goal), he wrote, "it is that men give up all their natural power to the society they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty as it was in the state of nature."
Even when it keeps to proper legislative form, though, Locke held that there are limits to what a government established by such a contract might rightly do.
Note that both "persons and estates" are to be protected from the arbitrary power of any magistrate, inclusive of the "power and will of a legislator." In Lockean terms, depredations against an estate are just as plausible a justification for resistance and revolution as are those against persons. In neither case are subjects required to allow themselves to become prey.
To explain the ownership of property Locke advanced a labor theory of property.
David Hume (18th century)
In contrast to the figures discussed in this section thus far David Hume lived a relatively quiet life that had settled down to a relatively stable social and political structure. He lived the life of a solitary writer until 1763 when, at 52 years of age, he went off to Paris to work at the British embassy.
He did not believe in hypothetical contracts, or in the love of mankind in general, and sought to ground politics upon actual human beings as one knows them. "In general," he wrote, "it may be affirmed that there is no such passion in human mind, as the love of mankind, merely as such, independent of personal qualities, or services, or of relation to ourselves." Existing customs should not lightly be disregarded, because they have come to be what they are as a result of human nature. With this endorsement of custom comes an endorsement of existing governments, because he conceived of the two as complementary: "A regard for liberty, though a laudable passion, ought commonly to be subordinate to a reverence for established government."
Therefore, Hume's view was that there are property rights because of and to the extent that the existing law, supported by social customs, secure them. He offered some practical home-spun advice on the general subject, though, as when he referred to avarice as "the spur of industry," and expressed concern about excessive levels of taxation, which "destroy industry, by engendering despair."
"The property which every man has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of a poor man lies in the strength and dexterity of his hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper without injury to his neighbour, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman, and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper. To judge whether he is fit to be employed, may surely be trusted to the discretion of the employers whose interest it so much concerns. The affected anxiety of the law-giver lest they should employ an improper person, is evidently as impertinent as it is oppressive." — (Source: Adam Smith, The Wealth of Nations, 1776, Book I, Chapter X, Part II.)
By the mid 19th century, the industrial revolution had transformed England and the United States, and had begun in France. The established conception of what constitutes property expanded beyond land to encompass scarce goods in general. In France, the revolution of the 1790s had led to large-scale confiscation of land formerly owned by church and king. The restoration of the monarchy led to claims by those dispossessed to have their former lands returned.
Section VIII, "Primitive Accumulation" of Capital involves a critique of Liberal Theories of property rights. Marx notes that under Feudal Law, peasants were legally as entitled to their land as the aristocracy was to its manors. Marx cites several historical events in which large numbers of the peasantry were removed from their lands, which were then seized by the aristocracy. This seized land was then used for commercial ventures (sheep herding). Marx sees this "Primitive Accumulation" as integral to the creation of English Capitalism. This event created a large un-landed class which had to work for wages in order to survive. Marx asserts that Liberal theories of property are "idyllic" fairy tales that hide a violent historical process.
Charles Comte: legitimate origin of property
Charles Comte, in Traité de la propriété (1834), attempted to justify the legitimacy of private property in response to the Bourbon Restoration. According to David Hart, Comte had three main points: "firstly, that interference by the state over the centuries in property ownership has had dire consequences for justice as well as for economic productivity; secondly, that property is legitimate when it emerges in such a way as not to harm anyone; and thirdly, that historically some, but by no means all, property which has evolved has done so legitimately, with the implication that the present distribution of property is a complex mixture of legitimately and illegitimately held titles."
Comte, as Proudhon later did, rejected Roman legal tradition with its toleration of slavery. He posited a communal "national" property consisting of non-scarce goods, such as land in ancient hunter-gatherer societies. Since agriculture was so much more efficient than hunting and gathering, private property appropriated by someone for farming left remaining hunter-gatherers with more land per person, and hence did not harm them. Thus this type of land appropriation did not violate the Lockean proviso – there was "still enough, and as good left." Comte's analysis would be used by later theorists in response to the socialist critique on property.
Pierre-Joseph Proudhon: property is theft
In his 1840 treatise What is Property?, Pierre Proudhon answers with "Property is theft!" In natural resources, he sees two types of property, de jure property (legal title) and de facto property (physical possession), and argues that the former is illegitimate. Proudhon's conclusion is that "property, to be just and possible, must necessarily have equality for its condition."
His analysis of the product of labor upon natural resources as property (usufruct) is more nuanced. He asserts that land itself cannot be property, yet it should be held by individual possessors as stewards of mankind with the product of labor being the property of the producer. Proudhon reasoned that any wealth gained without labor was stolen from those who labored to create that wealth. Even a voluntary contract to surrender the product of labor to an employer was theft, according to Proudhon, since the controller of natural resources had no moral right to charge others for the use of that which he did not labor to create and therefore did not own.
Proudhon's theory of property greatly influenced the budding socialist movement, inspiring anarchist theorists such as Mikhail Bakunin who modified Proudhon's ideas, as well as antagonizing theorists like Karl Marx.
Frédéric Bastiat: property is value
Frédéric Bastiat's main treatise on property can be found in chapter 8 of his book Economic Harmonies (1850). In a radical departure from traditional property theory, he defines property not as a physical object, but rather as a relationship between people with respect to an object. Thus, saying one owns a glass of water is merely verbal shorthand for I may justly gift or trade this water to another person. In essence, what one owns is not the object but the value of the object. By "value," Bastiat apparently means market value; he emphasizes that this is quite different from utility. "In our relations with one another, we are not owners of the utility of things, but of their value, and value is the appraisal made of reciprocal services."
Bastiat theorized that, as a result of technological progress and the division of labor, the stock of communal wealth increases over time; that the hours of work an unskilled laborer expends to buy e.g. 100 liters of wheat decreases over time, thus amounting to "gratis" satisfaction. Thus, private property continually destroys itself, becoming transformed into communal wealth. The increasing proportion of communal wealth to private property results in a tendency toward equality of mankind. "Since the human race started from the point of greatest poverty, that is, from the point where there were the most obstacles to be overcome, it is clear that all that has been gained from one era to the next has been due to the spirit of property."
This transformation of private property into the communal domain, Bastiat points out, does not imply that private property will ever totally disappear. This is because man, as he progresses, continually invents new and more sophisticated needs and desires.
Andrew J. Galambos: a precise definition of property
Andrew J. Galambos (1924–1997) was an astrophysicist and philosopher who innovated a social structure that seeks to maximize human peace and freedom. Galambos’ concept of property was basic to his philosophy. He defined property as a man's life and all non-procreative derivatives of his life. (Because the English language is deficient in omitting the feminine form “man” when referring to humankind, it is implicit and obligatory that the feminine is included in the term “man”.)
Galambos taught that property is essential to a non-coercive social structure. That is why he defined freedom as follows: “Freedom is the societal condition that exists when every individual has full (100%) control over his own property.” Galambos defines property as having the following elements:
Galambos emphasized repeatedly that true government exists to protect property and that the state attacks property. For example, the state requires payment for its services in the form of taxes whether or not people desire such services. Since an individual's money is his property, the confiscation of money in the form of taxes is an attack on property. Military conscription is likewise an attack on a person's primordial property.
Contemporary political thinkers who believe that natural persons enjoy rights to own property and to enter into contracts espouse two views about John Locke. On the one hand, some admire Locke, such as William H. Hutt (1956), who praised Locke for laying down the "quintessence of individualism". On the other hand, those such as Richard Pipes regard Locke's arguments as weak, and think that undue reliance thereon has weakened the cause of individualism in recent times. Pipes has written that Locke's work "marked a regression because it rested on the concept of Natural Law" rather than upon Harrington's sociological framework.
Hernando de Soto has argued that an important characteristic of capitalist market economy is the functioning state protection of property rights in a formal property system which clearly records ownership and transactions. These property rights and the whole formal system of property make possible: