Property is property only if it is respected, that is to say, held sacred. We might think a priori that this sacred character derived from man—that it is the husbandman who has communicated to the soil he tills and works, something of the respect of which he himself is the object, of the sanctity which is in him. In this case the property would have no moral value except that lent to it by human personality: this would be the value which, by entering into a relation with things and by making them its own, would confer a certain dignity on them by extension, as it were. But the facts seem to prove that the notion of property came about in quite a different way. The kind of sacredness that kept at a distance from the thing appropriated all individuals except the owner, does not derive from the owner; it resided initially in the thing itself. The things were sacred in themselves; they were inhabited by potencies, rather obscurely represented, and these were supposed to be their true owners, making the things untouchable to the profane. The profane were therefore not able to intrude on the divine sphere, unless they gave the gods their due and expiated their sacrilege by sacrifices. With these preliminary safeguards, they were able to take over the right of the gods themselves and put themselves in their place. Although, thanks to this expedient, the sacred character of the field ceased to be a hindrance to the work of the husbandman, it had not become extinct. It had merely been shifted from the centre to the periphery, and there its natural potency worked against all those who had not acquired a kind of immunity to it. The gods had not been driven from the field but transferred to the confines: a kind of bond had been made between them and the owner; they had become his protectors and by these regular ceremonies he ensured that their favour should continue. But for all those outside, they were still powers to be dreaded. Woe to the neighbour whose plough had so much as grazed a terminal god! They had disarmed only towards those who had paid the debt due and had behaved to them in a proper manner. The field was in this way shielded from any incursion or from any seizure by another. A right of property became established for the benefit of particular men. This right has, then, a sacred origin: human property is but sacred or divine property put into the hands of men by means of a number of ritual ceremonies.
We might perhaps be astonished to find an institution so fundamental and widespread as property thus resting on illusory beliefs and ancient notions which are held to have no objective foundation. Guardian spirits of the soil or the fields do not exist, we may say; how then has a social institution been able to persist, if it rests on fallacies alone? It should have crumbled away, it might seem, as soon as it came to be realized that these mystic concepts were utterly empty. But it happens that religions, even the most uncouth, are not, as is sometimes believed, merely phantasies that have no basis in reality. Certainly they do not express the things of the physical world as they are; they have little value in throwing light on the world. But they do interpret in a symbolic form, social needs and collective interests. They represent the various connexions maintained by society with the individuals who go to make it up, as well as the things forming part of its substance. And these connexions and interests are real. It is through a religion that we are able to trace the structure of a society, the stage of unity it has reached and the degree of cohesion of its parts, besides the expanse of the area it inhabits, the nature of the cosmic forces that play a vital role in it, and so on. … Religions are the primitive way in which societies become conscious of themselves and their history. They are in the social order what sensation is in the individual. We might ask why it is these religions distort all things as they do in their processes of imagery. But is it not true that sensation, equally, distorts the things it conveys to the individual? Sound, colour and temperature have no more positive existence in our world than the gods, the dæmons or spirits. By the fact alone that the representation presupposes a subject represented—(here individually and there collectively)—the nature of this subject is a factor in the representation and alters the shape of the thing represented. The individual, in picturing by means of sensation the relations he has with the world about him, puts into these images something that is not there, some qualities that come from his own mind. The society does the same thing in picturing by means of religion the milieu that constitutes it. The distortion, however, is not the same in both instances, because the subjects differ. It is for the thinkers to rectify these illusions that are necessary in practice. We may at any rate rest assured that the religious beliefs we find at the base of the right of property conceal social realities which they express in metaphor.
To make our interpretation really convincing, we have to get through to the realities and to discover beneath the letter of the myths the spirit it expresses. That is, we have to perceive the social causes that gave rise to these beliefs. The question comes back to this: how is it that the collective imagination has been led to consider the soil as sacred and inhabited by divine principles? The problem is far too wide in scope to be treated here, all the more so since the solution still escapes us. There is, however, a way of forming some image of things that will serve our purposes—one that will allow us to see how the illusions that come from a region of myths can have in reality a positive significance.
The gods are no other than collective forces personified and hypostasized in material form. Ultimately, it is the society that is worshipped by the believers; the superiority of the gods over men is that of the group over its members. The early gods were the substantive objects which served as symbols to the collectivity and for this reason became the representations of it: as a result of this representation they shared in the sentiments of respect inspired by the society in the individuals composing it. This is how deification came about. But although the society is superior to its members taken singly, it exists only in them and through them. The collective imagination therefore had to be brought to the point of conceiving of sacred beings as indwelling in men themselves. This is indeed what happened. Every member of the clan is supposed to carry within himself a share of the totem whose cult is the religion of the clan. In the Wolf Clan, each individual is a wolf. There is a god within him and indeed several. If, then, there are gods in things and especially in the soil, it is because things, and especially the soil, are associated with the intimate life of the group just as much as human beings are. This is because they are believed to live the life of the community. Therefore it is quite natural that the principle of communal life should reside in them and make them sacred. We now get an idea of what this sacred character is, that the soil is imbued with. It is not a mere invention without foundation, some figment of a dream. It is a stamp the society has put on things, because they are closely mingled with its life and form part of itself. If the soil was not to be approached by the foot of individuals it is because it belonged to the society. This is the true potency that set it apart and withdrew it from any private appropriation. To sum up, we might say: that private appropriation pre-supposes an initial collective appropriation. We have said that the believers took upon themselves the right of the gods; we should now say that the individuals took upon themselves the right of the collectivity. It is from this collectivity that all sacredness issued. It alone (if we confine ourselves to things empirically known) has adequate power to raise the existent thing—whether it be land, animal or person—above and beyond the reach of any private assault. Private property came into existence because the individual turned to his own benefit and use the respect inspired by the society, that is, the higher dignity with which it is clothed and which it had communicated to the things composing its material substitute. As to the hypothesis, according to which the group was the original possessor of things, that fits in perfectly with the facts. Indeed, we know that it is the clan that owned the land in common, land that it was settled on and which served for hunting or fishing.
Looked at from this point of view, even the ritual practices we have described take on a new significance and can be defined in secular terms. The sacrilege that man thinks he is committing against the gods by the very fact of tilling and breaking up the soil, is in truth committed against society, since society is the reality hidden behind these mythical concepts. It is therefore, in a way, to society that man makes his sacrifices and offers up the victim. Again, when these figments of men’s minds dissolve, when these phantom deities vanish into air and the reality they represent appears by itself alone, it is to this society that these annual tributes will be offered, by which the believer originally bought the right from his deities to till and cultivate the land. These sacrifices, these first-fruits of all kinds, are the earliest form of taxes. First, they are debts that are paid to the gods; they then become tithes paid to the priests, and this tithe is already a regular tax that later on is to pass into the hands of the lay authorities. These rites of atonement and propitiation finally become what amounts to a tax, although unsuspected. The germ of the institution is there, however, and is destined to develop in the future.
If this interpretation is right, the sacred nature of appropriation had for a long time simply meant that private property was a concession by the collectivity. But however this may be, the circumstances in which property came into being did determine its nature. It could only be collective. In fact, it was by groups that the land was appropriated in this way, that the formal ceremonies described were carried out and thenceforth the whole group had the benefit of the results. These formalities even had the effect of giving the land a personal identity and cohesion that it did not originally possess. This strip of consecrated land separating the field or holding from those adjoining, at the same time insulates all those within it from similar groups settled elsewhere. This is why the coming of agriculture undoubtedly gave to family groups smaller than the clan a cohesion and stability they had not known before. It was truly the individual nature of the field that made the collective individuality of these family groups. Henceforward, these groups no longer yielded to the slightest change in their circumstances: no longer did they take shape for a time and then disperse, according to the impulse of private sympathies or fugitive interests. They possessed a definite form, a bone structure, as it were, which made its indelible pattern on the very land they lived on: for it was indeed they who made the form and contour itself of that land—a form that was unchanging.
This goes to explain one of the features of collective family property already referred to in last year’s lectures. It means that under this system people are possessed by things at least as much as things are possessed by people. Kindred are kindred only because they make common use of a certain domain. If anyone makes a final parting with this economic community, all links of kinship with those that remain are cut. This predominating influence of things becomes very clear from the fact that in some circumstances people may leave the group thus formed and cease to be kindred. The things, on the contrary, the landed property and all that goes with it, remain there in perpetuity, since the patrimony is inalienable. In some cases, this possession of people by things goes so far that it ends up by becoming a real form of slavery. This is what happened to the ‘epicleros’ daughter in Athens. If the father had as offspring a daughter only, she would inherit, but it was the status in law of the property which came to her that fixed her own status in law. Since the estate could not go out of the family, precisely because it was the very heart of it, the heiress was bound to marry her nearest male relative; if she was already married, she had either to break her marriage or renounce her heritage. The person followed the thing: it was a question of the daughter being inherited rather than inheriting. All these facts are easily explained if landed property has indeed the origin we have assigned to it. For then it is the property in the form of real estate that binds the land to the family; it is that property that has made the family’s centre of gravity and that has even imparted to the family its own external forms. The family means the individuals taken as a whole who lived in this insulated and sacred little island that made up the domain. It is the laws that bind them to the sacred soil they cultivated which therefore unite them amongst themselves. This then, generally speaking, is how the kind of cult whose object is the family field or holding came into being, and the sacred prestige and awe this cult inspired in men’s minds. The cult did not acquire this prestige merely through the vital importance of the soil to the husbandman, nor from the supreme power of tradition, but simply because the soil itself was steeped in sacred meaning. It was far more a case of the sacredness of the holy thing being communicated to the family, than of its deriving from the family.
But precisely because property, in its origins, can only be collective, it remains to explain how it became something individual. How is it that individuals thus grouped together, attached to an identical group of things, came to acquire separate rights over separate things? The land holding cannot, in principle, be broken up: it forms a single unit, and that is the unit of the inheritance; and this indivisible unit is imposed upon the group of individuals. How does it happen that, in spite of this, any individual should have been able to reach the point of having a property of his own? As we might guess, this individuation of property could not come about without involving other changes in the situation as between things and persons. For as long as the things preserved this moral superiority over persons, as it were, it was impossible for the individual to become their owner and establish his own command over them.
There were two different causes underlying this result. To begin with, it was enough for one of the members of the family group to be raised in rank in some way—by a chain of circumstances—for him to be lent a prestige that none of the others had and to make him the representative of the family group. In consequence, the ties binding the things to the group bound them direct to this privileged personality. And since this individual embodied in himself the whole group, men and things, he was in fact invested with an authority that placed things as well as men under his dominance, and thus an individual property came into existence. This change was achieved with the coming of paternal, and more especially, patriarchal, power. We heard last year what the causes were that led the family to emerge from a state of close unity and equal rights—still seen until recently in Slav families—and to elect a head to which it submitted itself. We saw how, by that very fact, this head of family became a high moral and sacred power: this is because the whole life of the group was absorbed in this head, and thus he came to have the same transcendence over each of its members as the collectivity itself. He was the family entity personified. And it is not alone people, traditions and sentiments that happen to find expression in his person. It is, too, above all the patrimony, with all the concepts attaching to it. The Roman family was made up of two kinds of elements: the head of the family, on the one hand, and on the other the rest of the family, called the familia, which comprised at once the sons of the family and offspring, the slaves and all things or property. All that was of moral or religious significance in the familia was, as it were, concentrated in the person of the head of the family. This is what gave him such a supreme position. The family’s centre of gravity thus became displaced. It passed from the things it was vested in to a given person. Henceforward an individual came to be an owner, in the full sense of the word, since the things were subject to him, rather than he to them. It is true that so long as the authority of the head of the family was as absolute as it was in Rome, he alone could exercise this right of property. But when he had passed away, each of his sons, successively, was called upon to exercise it in turn. And by degrees, as the patriarchal power became less despotic, at least as a right, and as the individuality of the sons came to be acknowledged even before the death of the father, they were able—to some extent, at any rate—to become owners in his lifetime.
The second cause of the individual becoming an owner was no less effective in the result. Its action ran parallel to the effects of the first that I have just described and it reinforced them.
This second cause was the development in the sphere of personal or movable property. Indeed it was only landed property that had the sacred character. This had the effect of withdrawing it from being within the disposal of individuals and so made a communal system necessary. Personal or moveable property, on the other hand, was in itself, as a rule of a profane nature. However, so long as industry remained solely agricultural, personal property played only a secondary and auxiliary part; moveables were hardly more than adjuncts or annexes of landed property. This was the centre to which all that was moveable in the family gravitated, things as well as people. It kept all things within its sphere of action and thereby prevented them from acquiring any legal status in keeping with their particular features, and from developing the germ within them of some new right. Also, any earnings that members of the family could make outside the family community flowed into this family patrimony and was merged with the rest of the property, on the theory that the accessory follows the principal. But as we said, the implements and the dead or live stock that were used more especially in farming and were therefore in closer contact with the soil, shared with it its characteristic attribute; that is, they were inalienable. With time, however, and with the progress of trade and industry, the personal or moveable property took on greater importance; it then cut away from this landed property of which it was only an adjunct; it played a social rôle of its own different from landed property, and became an autonomous factor in economic life. Thus a fresh nucleus of property was made outside real estate, and so did not of course have its characteristic features. The things comprised in such a nucleus had in themselves nothing that put them beyond the reach of any trespass such as we discussed. They were only things, and the individual into whose hands they came was likely to find himself on an equal footing or even above them. He could therefore dispose of them more freely. Nothing tied them to any given point in space; nothing made them immoveable. This meant that they depended direct only on the person of the one who acquired, or on some way in which he had acquired them. And that is how this new right of property came about. But it is clear, in the light of our present-day laws, that real estate and moveable property are quite different in nature, and this reflects the separate phases of evolution in the law. The former is still loaded with prohibitions and obstacles which are mementos of its ancient sacred character. The latter has always been freer, more flexible, more entirely left to the discretion of individuals. Real as this duality may be, we must not lose sight of the fact that the one type of property issued from the other. Personal property, as a distinct entity in law, was formed only as a result of landed property and on its pattern: it is a weak reflection, an attenuated form of it.
It was landed property as an institution which first established a bond sui generis between groups of persons and certain given things. Once that had been done, public opinion was quite naturally ready to admit that, as social conditions changed, bonds similar in the main might link things with personalities in place of collectivities. This was only applying a previous system of regulations to new circumstances. Personal or moveable property is in a way no other than immoveable property modified to accommodate the features peculiar to moveable property. It bears the stamp of its origins even to-day. It may in fact be inherited and by the same title as the other; in the case of descent in direct line, the right of succession has to be observed. Inheritance is undoubtedly a survival of the phase of early communal property. It seems to be a fact that this communal property, which in the beginning was identified with real property or immoveables, was in reality the prototype of personal or moveable property.
It is now clear how property as we know it to-day is linked with the mystic beliefs we have found at the root of the institution. Originally, property was related to land, or at least the distinguishing features of landed property extended even to moveables, owing to their lesser importance; these features, by virtue of their sacred nature, imply of necessity communalism. Here, then, we have the starting point. Then, by a dual process, individual ownership splits off from collective ownership. The concentration of the family, on the other hand, which established patrimonial powers, causes all these sacred virtues (that were inherent in the patrimony and gave it an exceptional status), to issue from the person of the head of the family. From now onwards, it is man who stands above things, and it is a certain individual in particular who occupies this position, that is, who owns or possesses. Whole categories of profane things take shape independently of the family estate, free themselves of it and thus become the subject of the new right of property, one that is in its essence individual. Then again, the individualising of property followed from landed property losing its sacrosanct quality—a quality which was absorbed by the human being. It was due also to the fact that the other form of property, which in itself did not have this quality, evolved to the point of having a distinct and different juridical structure. But since communal property is the stock from which the other forms sprang, we find traces of it in their structure as a whole.
It may appear surprising to see no part assigned in the origins of the right of property to the concept of its deriving from labour. But if we look at the way in which the right of property is regulated by our code of law, we shall not find this principle expressly laid down in any part of it. Articles 711 and 712 of the Code of Civil Law say that property is acquired by inheritance or succession, by gift or donation, through accession, by uninterrupted possession, or by the effect of binding obligations. Of these five methods of acquisition, the first four do not imply the concept of labour in any way,1 and the fifth not necessarily so. If a sale transfers the ownership of a thing to myself, it is not because this thing has been produced by the labour of the individual making it over to me, nor because what I give in exchange is the result of my labour; it is simply because both the one and the other are in the lawful possession of those who exchange them and this possession is founded on a valid right. In Roman law, there is even less evidence of the principle. We might say that in law, the vital element in all methods of acquiring property is: the material taking possession, the holding of it and the close contact with it. Not that this physical fact is enough to constitute ownership; but it is always necessary, at least initially. Furthermore, what demonstrates a priori that this concept has not affected or, at least, deeply affected the right of property is that it is of quite recent origin. It is not until we get to Locke that we see the theory that property is legitimate only if it is founded on labour. Grotius seemed still unaware of it at the beginning of the century.
Is this to say that the theory does not appear in our laws? Not at all; but it did not derive from any provisions relating to the right of property. It is to the right of contract that we have to look. Moreover, it seems right to us that all work that is or can be put to use by others should have remuneration and that this should be in ratio to the useful labour expended. All remuneration confers rights of ownership, since it transfers things to the beneficiary. By this means a change or transformation in the right of contract has come about, which must of necessity affect the right of property. It may even occur to us that the principle which was in process of evolving is in conflict with the principle on which any personal appropriation has hitherto rested. For we cannot have just work by itself: it calls for some material substance, some object it has to be applied to, and this object must have already been appropriated, since the work is done to modify it. The work therefore does away with the appropriations that are not founded on work. Hence these conflicts between the new demands of conscience which are beginning to set in, and the earlier concept of the structure of the right of property. But since these new demands have their origin in the new concepts that we begin to see in contractual law, it is proper to examine them in the principles of contract.
Note
1 Tr. note: accession may include the application of labour, acc. to A. W. Dalrymple (Legal Terms.)