Analytical Theories
I. Development
Below I shall try to throw a sidelight on the concept of private property, its his
toric developm ent and relation with the social conditions and the political organ
izatio n .1)
Private property does not exist in the outer world as p articu lar objects or qu al
ities of the objects. Private property is a so-called institutional fact, i.e. a p lu ra lity of elem ents which are organized by m eans of rules governed by an aim, which has its foundation in hum an needs and values. Therefore, we have to dis
tinguish betw een the real facts, i.e. the needs and activities of hum an beings in relation to their surroundings, and the conceptions we form of those things.2)
W hen we fully realize this distinction, we can also understand, why it is fun
dam entally w rong to speak of private property in a long historic perspective, and why it is at the sam e tim e m eaningful. Presum ably, m an ’s fundam ental need for using things in his surrounding world in order to a tta in the object of his desires has been relatively unchanged through all times. Like anim als m an has ap p ro priated food and other things, ju s t as individually or in groups he has lim ited and m aintained a territory, which has yielded the m aterial basis of his existence or the existence of the group. However, in addition to this m an has been able to keep and a d a p t objects for tools and p erm anent use. For th a t reason h um an be
ings have had a need for creating and preserving lasting relations betw een them selves and outer objects and territories. Besides hum an beings have been able to form ideas of these relations and translate them into language, the so-called con
cepts.
O u r ideas and consequently our concepts are formed and developed on the basis of our experiences individually as well as collectively. Therefore, they n a
turally have to be closely connected w ith the physical conditions of our life, in
cluding the prevailing socio-economic conditions at the tim e in question and the social organization. T he ideas and concepts arise and are developed through the history of m ankind. Therefore, this is n aturally also true of the concept of law
and the concept of right. It is a well-known fact that, some legal theorists there
fore for instance deny the existence of »objective law«, i.e. the totality of rules of law in a given society, before this society has a formal social organization with legis
lature, central governm ent and courts, whose purpose respectively are to create and adm inister legal rules and to settle legal disputes. O nly w ithin such organ
ized societies exist - according to this conception - also »subjective rights«, i.e. »in
dividual positions of power« secured by the rules of law. According to this con
ception neither law nor right exists in prim itive societies or in international rela
tions. If, on the other hand, a m ore functional view is adopted and interest is taken in hum an beings’ different forms of organization and the way in which they secure the satisfaction of their needs w ithin organized limits, it has sense to speak of law in less developed societies as well. Obviously, the form er conception p er
m its a m ore precise and applicable analysis of law and its structure in our time, whereas the latter makes it easier to u nderstand the developm ent and social function of the rules and the legal concepts. I f a study of law is to be complete one therefore has to supplem ent these two aspects and combine a structural with a functional a p p ro ach .3)
M any things indicate th at the consciousness of the individuals as well as of the hum an race develops from a concretizing into a generalizing perception. C hil
dren have from the beginning a very concrete perception of their surroundings, whereas the ability to m ake and understand generalizations and concepts devel
ops along w ith growing m aturity. So it also appears from analyses of the history of language th a t universals develop gradually on the basis of a sum m ing up of experiences. T hus it is em phasized by the D anish classical philologist Hartvig Frisch in his book on power and law in an tiq u ity 4) th at the abstraction »good«
does not occur in the Greek language until in the 6th century at the earliest. Be
fore this tim e the concept occurs in a functional or instrum ental sense as »good at« som ething.5)
»Good« (↔ evil) as an abstraction develops on the basis of the practical experi
ences of m any generations. So it is also assum ed by the two prom inent legal hi
storians, M ax Kaser and H .J . W o lff) th at the concept of right as idea has arisen as a num ber of conflicts between individuals and groups has been settled in a certain way, which eventually develops into an established practice gradually m aking people expect a sim ilar conflict to be settled in the sam e way. As such ex
pectations gain ground, they separate from the concrete conflicts and result in the creation of the abstraction »right«. T hus, historically it is a right of petition (w rit), which gives rise to creation of the abstraction »right«, and later on the ac
ceptance of the existence of an individual right gives ground for the pu ttin g for
w ard of a legal petition. As late as the classical Rom an law they have not de
tached themselves from the starting point, as it is the legal petition (actio), which constitutes the subjective right. A corresponding situation is found w ithin Eng
lish m ediaeval law (writ).
If we turn to the N ordic provincial laws from the 12th and the 13th centuries, we can observe, how corresponding legal actions are dependent on the existence of a special access to com plaint, w hich is left to private initiative. As in the orig
inal Rom an law the case is a private m atter between two individuals, who p ut the conflict in the hands of a m ediator or an a rb itra to r chosen jointly by the parties.
It is a generally accepted view am ong legal sociologists and legal ethnologists th at the em bryo of an organized solution of conflicts m ust be sought for in such an institution of m ediation and arb itratio n , which is replaced by actual organ
ized courts concurrently with the form ation of a central political power. In the old Greek city-states and in the N ordic peasant com m unities it was originally the people’s assem blies, which convened and settled the conflicts in an atte m p t to m aintain peace in the com m unities.^
It is obvious th at at any rate the R om an ju rists have had rath e r unam biguous ideas of private rights, am ong these also of a special property right consisting in a person’s special dom inion over a thing (dom inium ), and an obligation consist
ing in a bond between two persons (nexum , ob lig ad o ). O nly a m uch later poster
ity has in these ideas interpreted com plete property rights and obligations in the form of a ’ius in re’ and a ’ius ad rem ’. No more than the R om an legal concep
tion recognized any fundam ental distinction betw een ius in re and ius ad rem and any fundam ental distinction betw een procedural law and m aterial law existed any distinction between private law and public law. All in all the concepts and contents of ow nership could be said to be identical w ith the possibilities th at the system of procedure im plied to the person who claim ed to have dom i
nion over a thing. In Rom an law as well as in the early m ediaeval societies the execution of the judicial decision was left to private enforcement.
C oncurrently w ith the developm ent of the m edieaval feudal societies there is a change of the conception of ow nership in real property, which is presum ed to be
long to the king or on the C ontinent to the em peror. T he king or the em peror en
feoffs his vasals w ith larger or sm aller territories, which are then given to the peasants as tenancy. However, it would be incorrect to describe such feudal rights of use as rights of private or public law in land in a m odern sense.
T he later E uropean n atu ral law is the first to m ake fully developed ideas of subjective rights as a concept.8) T he E uropean n atu ral law originates in the C atholic m oral philosophy. However, in accordance w ith the classical tradition the C atholic m oral philosophy operates w ith the concept of the »law of nature«
(lex naturæ) , w hereas the P rotestant so-called rationalist n atu ral law of the 17th
and the 18th centuries operates with the concept of »natural right« (ius naturæ).
T his reflects the developm ent, which has taken place in the experience of m a n ’s situation from the 13th to the 17th centuries. In the m eantim e we have the great discoveries and the economic developm ent especially w ithin u rb an trade, which lays the groundw ork for the R enaissance and individualism , and consequently for the idea th a t each individual has special n atu ral rights.
T he conceptions of state and law in the M iddle Ages were based on the p re
sum ption th a t G od’s law, which is eternal and unchangeable, together with custom ary law is prescriptive to hum an life, w hereas the secular princes have the task of m aintaining peace and order in the nam e of God. D uring the R enais
sance the conception arose th at there is a hum an legislative power, a sovereignty, which is originally believed to lie with the secular prince. By this the g round
work for the conflict betw een em peror and pope was laid, in which am ong others Dante - as we already know - opposed the pope. - T his idea had its consistent form in M achiavelli and in the later E uropean absolute m onarchies, w here the sover
eignty lay w ith the king (the State th a t’s I!).
W hile the theorists of the R enaissance assum ed th at the sovereignty, i.e. the legislative power, lay with the prince, it was assum ed by Hugo Grotius and his im itators in the 17th century th at the sovereignty lay with each individual.
From this the conclusion was draw n th at law -m aking in any form therefore has to seek its grounds in each individual’s own rational will. T he laws of the society had to be based on a so-called social contract consisting in the individuals’ pre
supposed approval of the social institution. O nly through this it was possible to justify the intervention in the freedom of the individuals which the laws and the
enforcem ent of the laws implied.
It was a n atu ral consequence of this starting point th at the creation of rights according to private law was conceived as the individuals’ own self-legislation, and for th at reason it was ju s t as unlim ited as the legislation according to the so
cial contract. A consequence of this was the adoption of a general freedom of agreem ent, which was a disengagem ent from the traditional types of contracts w ithin Rom an law.
T he English philosopher John Locke considers - as m entioned below - private property as a n atu ral right on the sam e lines as hum an rights and legislative authority. Everybody is entitled to the profit of the work th at he has perform ed. - Therefore, »Danske Lov« (1683) V.1.1. prescribes th at everybody is bound by his oral as well as by his w ritten promises. By the prom ise some of the liberty of the prom isor is transferred to the promisee, who then by virtue of a special m oral power has a right (ius) over the prom isor. T his prim ary right based on the pro
mise is supplem ented by a secondary right of the prom isee to use force against
the prom isor. T his force is considered to be based on the social contract, which legitim ates the power of the state.
Private property is also believed originally to be based on such an access to m ake a claim against another person, b u t in accordance w ith a traditional con
ception private property is considered to be justified by a special dom inion (do
minium) over a thing. However, this dom inion autom atically implies obligations to everybody and a right of the owner to m ake a claim against the person, who interferes in his property rights. But consequently any right is taken to involve an obligation for one person or an indefinite num ber of persons.
It is self-evident th at such a conception of law reflects the interest of the grow
ing m iddle classes. C oncurrently with the economic developm ent of the urb an trade a political self-consciousness arose and there was a desire for having a share in the social influence. Referring to the sovereignty of the people the French Revolution in 1789 and the later bourgeois revolutions during the 19th century were carried through.
As the revolutionary philosophy deriving from n atu ral law drained away in bourgeois dem ocracies there was a need for legitim ating the creation of law of the new society independently of each individual’s will. Therefore, the 19th cen
tury is everywhere characterized by an extensive legal positivism , w hich con
ceives objective law as the orders of the sovereign, i.e. the state. As early as the end of the 18th century Immanuel Kant had separated law from m oral and in do
ing so founded the legal positivism. T he G erm an legal theorist von Savigny saw to the further developm ent of these ideas; in continuation of K a n t’s liberal the
ory of the state he w anted to keep private law out of the sovereignty of the state.
C onsequently Savigny introduced a fundam ental distinction betw een public law, which was considered to be based on the will of the state, and private law, which was considered to be based on the will of the individuals. T h e object of the state is only to create the outer fram ew ork and a system of com pulsion for the realization of the private social life, the so-called »w atchm anstate«.9)
A nother consequence of this is th at it is possible to define the private subjec
tive rights as a power of will, a power founded on the private will, b u t secured by objective law. By the distinction betw een private law and public law Savigny has introduced a distinction which makes it difficult conceptually to justify so
cial lim itations of private property. However, by principally recognizing legal positivism a door has been opened to a recognition in principle of any social lim i
tation of the private property, which is in accordance w ith the constitution in force at the tim e in question.
T his was the consequence th a t the D anish ju ris t A . S. Ørsted draw from this theory at the beginning of the 19th century. As a prom inent official and
politi-cian A. S. Ø rsted influenced the D anish legislation during the first h alf of the 19 th c e n tu ry .10)
T he English philosopher Jeremy Bentham rejects the existence of subjective rights, which he conceives only as fictive m anifestations of the sovereign’s orders through the objective law; also w ithin G erm an theory it is assum ed th a t rights do not exist - they are nothing but m ere forms of thoughts th at m ake possible a survey and control of com plicated sets of rules of law. T his is the conception of law th at we shall m eet in the m odern so-called realist theories of law.
However, at the end of the last century it becam e still m ore evident th at objec
tive law as well as subjective rights are not m ere conceptual constructions or public or private expressions of will. It is recognized th at the law is a m eans of achieving hum an objects which again derive from fundam ental hum an in ter
ests. As objective law is the result of a struggle betw een political forces, subjec
tive rights become a legally protected interest. By this it has been recognized in principle th at objective law and subjective rights are political results of socially effective interests.
A lthough the E uropean constitutions contain provisions w hich recognize the inviolability of private property, it is recognized, however, in § 73 of the present D anish C onstitution th at private property m ust yield to the public interest. - Pri
vate property m ust be given up or tolerate restrictions when it is required out of consideration for the public good, b u t only in retu rn of full com pensation. H ow ever, at the sam e tim e it is recognized th a t private property is not unlim ited. P ri
vate property m ust not be exercised spitefully, and concurrently w ith the growth of the society and the social developm ent d uring the 20th century it has been re
cognized to an increased extent th at private persons m ust endure general lim ita
tions of private property in so far as it is necessary for the social planning and the social welfare. O n the other hand, such general lim itations of private property do not involve any claim to com pensation. An im p o rtan t problem is, however, to lim it the general restrictions of private property, which do not adm it the owner to com pensation, from expropriations, which incur an obligation to pay com
pensation in full to the owner.
T he so-called realistic theories of law have all by virtue of a fundam ental posi
tivism of law left this decision to the legislature, which is said to give a m ore p re
cise definition and delim itation of private property in its laws. Private property is - as expressed by the D anish legal theorist A l f Ross - nothing b u t a term inologi
cal auxiliary concept connecting a set of legal facts with the legal effects provided by the law s.n) C haracteristically, therefore, in his handbook of constitutional law Alf Ross goes very far in the direction of assum ing th at in principle the legisla
ture can pass any lim itation w hatsoever of private property.
It is not possible here to amplify the legal philosophical debate on the concept of right. As already m entioned some theories will com pletely em pty the concept of right of any content and m ake it a linguistic designation of objective law con
cerning the relationship between persons and objects. O thers consider subjec
tive rights as m ere reflexes of the system of procedure. However, it is com m on to these conceptions th a t »right« and »private property« have no independent con
tent.
A nother N ordic tradition dating back to the end of the last century does not em pty the concept of right and especially the concept of private property of all content, even though it breaks up private property into several legal relations and several actual and legal rights of the o w ner.12) A ccording to this conception private property contains four rights: 1) the right tó an actual use of the object in so far as it does not conflict with lim itations, if any, provided by the law, 2) the right to legal disposal of the object, 3) the right to use the object as a security when raising loans, and 4) the right to pass on the object.
I shall not here m ake a detailed evaluation of the different conceptions of the concept of right. I only w ant to point out th a t in my opinion one ought to be wary of defining objective law as well as subjective rights as m onistic concepts.
It is beyond doubt th at the concept of right is attached to im p o rtan t hum an functions and interests, as it appears from history. T his is a fact th a t one has to take into consideration when discussing the concept of right in a legal political sense. I f the concept of right is to be discussed in a legal dogm atic sense, it will on the other han d be m ore n atu ral to use the so-called realistic concept of right, which conceives the rights as an abbreviated expression of the rules em bodied in objective law.
However, it can not be ignored th at the choice of concept of right has an ideo
logical aspect, w hich in case of d o ubt can determ ine the argum entation. T o a Liberal conception the freedom of action is fundam ental, so lim itations of this m ust have a specific legitim ation; therefore, it is n atu ral here to conceive private property (and the other private rights) as som ething m ore than the total of the rules of objective law. Private property (and other rights) has according to this conception specific contents which secure the legitim ate freedom of action in relation to an object to such an extent th at it does not conflict w ith the lim its, if any, p u t on it in positive law, i.e. a constitutional right. O n the other hand, a Socialist conception, which does not prim arily let the individual freedom of ac
tion come before other considerations, will to a higher degree be inclined to con
ceive the rights as m ere reflexes of objective law, i.e. a »social function«.