On the Institution of Property

From Private Law by Friedrich Julius Stahl, pp. 43–58

Part Two:
Property in the Broad Sense[1]

Chapter One:
Concerning Property* in General

§. 22. Property* as the Manifestation of Individuality

Man is lifted out of the material base of his existence into the essence of the spirit. He is made from dust, but a divine breath has been breathed into him. For this reason he is on the one hand dependent on the material world outside of him, needing it for his maintenance and gratification; on the other hand he is elevated above it: it is for him a serviceable medium and material. In this manner, man is set in the creation as lord. The objects of the external world are allotted to him for the satisfaction of his needs, initially corporeal, and through them spiritual ones as well. However, in the manner of achieving satisfaction, that is, in the arrangement of lifestyle and conduct, the personality of man is to actively involve itself. For this reason man has, <44>from nature, power over things; for this reason in human common life there must also be freedom for each vis-à-vis everyone else to do as one likes with those things; things must be enduringly and securely subjected to one’s will.

This is the basis for property* in the broadest sense. Property is the material for the manifestation of the individuality of man. His innermost being reveals itself in the manner and measure in which he acquires and uses property. The manner of gaining a living, clothing, habitation, use for sensual enjoyment, for taste, art and science, for hospitality, liberality, goals of common utility, employment for acquisition and profit, for spiritual activity, for the contemplative life – this total way of life, resting on the foundation of property, is the image of man.

Property is however especially and primarily the material for the fulfillment of man’s ethical duties. A man has particular duties that are his alone, which are not at the same time of others or of the community, duties stemming from his individual vocation and course of life, chiefly duties to his family. For this reason he must also have means which are his alone, in order that through their acquisition and use those duties can be fulfilled. In the manifestation of individuality and the fulfillment of special duties, for which property thus provides the necessary foundation, consists the activity of the personality of man.

Therefore property is not simply the satisfaction of human self-interest or the necessary means of maintenance, nor is it merely the purposeless rule over things; it is the material and means for a vocation, and therefore is itself a vocation.[2] Herein lies the ethical consecration of human relations to the goods <45>of the earth, that in their use the innermost character of men be made manifest, and that these goods be the means for them to uphold the family bond and family life. They are this however only by means of property.

§. 23. The Community of Goods

The community of goods, often contrasted with property as a higher, more ethical institution, does not answer to the purpose of property*. It does not even satisfy material needs, or if it does it does so insufficiently, and certainly not in a fair manner, because it neglects the incentive of production of goods, and values the lazy as highly as the productive. Above all, it eliminates the activity of personality, which is what truly consecrates property. With the distribution of goods by the community, the entire arrangement of life [Lebenseinrichtung], it being built on goods, is likewise distributed by the community, and equally to each and every one. The human spirit hereby loses a portion of the material upon which it imprints its unique stamp, like taking from the artist the material he uses to express his thoughts. No less does it deny the fulfillment of ethical obligations to one’s own. Society, immediately or mediately, then provides for one’s wife and children, comes to the aid of one’s parents and relations. This in large part eliminates the ethical claims and activities of love from the holiest of bonds, and conversely eliminates ethical motivation from the relationship to goods. These goods then sink to the level of bare means for sensual maintenance and enjoyment.[3]

<46>The derivation of the community of goods from “Everything is common to those who love each other,” as with Plato, rests on a misunderstanding. This is because the community of goods, being an expression of love, has to be a work of action (and thus of sharing [Mittheilung]), not a pre-existing condition [gegebener Zustand]. If the human will were immutable, which it should have been in accordance with its divinely created nature, then of course immutable love would have fomented the community of goods, albeit as a perpetual act (uninterrupted sharing). But because the human will is mutable, the community, that is the sharing of goods, can only be fleeting[4] and a community of goods as an institution, existing of itself apart from any action, would make the human condition not a whit more ethical.

The teaching of Christianity approaches to [geht auf] this community by sharing, though by no means in opposition to the institution of property, and the first Christians by and large did not live in a community of goods. “No one said of his own goods that they were his, but that they were everyone’s in common” (Acts 4:32) refers to use, not to right. In order for Barnabas to lay the proceeds from his land at the Apostles’ feet (Acts 4:37), he first had to own land and realize proceeds. Furthermore, such an act is praised as an exceptional example of love and not viewed as a Christian duty, as Peter expresses in his speech to Ananias (Acts 5:4): “you could have retained it (the land) in your possession, and when it was sold, it remained in your power.” To the degree however that a propensity for community of goods is found in the early church, it differed fundamentally from the later political sects, namely the Communists. In the former case, the propensity was for those who <47>own goods to give; in the latter case there is the desire and the claim of the have-nots to take.

A true community of goods is seen partially in the ancient world, and generally at the time of the initial development of peoples: for example, Oriental priests’ landed property was considered common, and in Greek states a portion of the land often was allocated to all jointly. This community, which furthermore usually was restricted to certain objects, had, just as in the beginning, the lack of development of human individuality as its precondition – such a priest and even such a Greek citizen usually had their day-to-day activity in common with each other as well – and was based on the notion of common devotion to a higher calling (priestcraft, the state) in which the collective still formed an undivided unity – not on a bare equal claim to satisfaction on the part of separate individuals; and finally, its purpose was only bare maintenance, maintaining life in the highest degree of moderation, even to the point of an asceticism-oriented life, not to extend the luxurious pleasures of an overly cultured time to the poorer classes as well. This therefore can only be the calling of exceptional times and exceptional groups. Its significance is clearest in the monasteries. This same significance is also seen in the community of goods of the Pilgrim Fathers in New England. Earthly goods were far less important to them than the zeal to establish the kingdom of Christ. On the other hand, the movements for a community of goods in Europe after the Reformation – Thomas Munzer, the peasants’ rebellion, the Levelers – were precursors of contemporary Communism, just as the political movements accompanying them were precursors of the Revolution. Then, it was the breaking of God’s ordinances out of religious fanaticism; now, out of the lack of religion.<48>

§. 24. Inequality of Property*

The inequality of property* is a necessary consequence of property. May it originally have arisen through occupation or distribution, equally or unequally, property must straightaway, in consequence of independence and thus independent destiny, lead to inequality. This is because property includes among its factors not simply nature and its available objects, which man to a certain degree can maintain in equal distribution; two other factors come into play, the action and labor of man and the blessing of God. These are however always and everywhere different. The one is industrious, the other is indolent, the one gathers, the other uses up. The one is a disciplined hunter, fisherman, shepherd, farmer, craftsman; the other performs these functions without talent. God also distributes his blessing differently. He determines that the one is born earlier than the other. He allows the one to succeed and the other to fail, He leads the one to the game and to the fish and not the other, He preserves for the one his fields and makes his herds fruitful while dispensing to the other hail and epidemics. Certainly such inequality of property*, which is to be attributed to the particular relations and gifts of each individual and the special leading of God, appertains to God’s world order on earth and to the full development of the personality of men, similar to the way special gifts develop, and in like manner as all special destinies. In general therefore the legal basis of property as an institution is based in the vocation of men to actuate their personality; hence, presupposing this, the legal basis for specific property (that of each man [eines jeden Menschen]) lies in these three: the original inheritance through all generations reaching back to the initial distribution; the particular act of men (labor, saving or the lack thereof); and the dispensation [Bescheidung] of God. None of these three aspects should be <49>denied recognition and legal consequence.

In accordance with this, the equality of goods – while allowing separate property – is no command or goal of the legal order, as little as is the community of goods. It is contrary to justice that the industrious and the lounger, the thrifty and the profligate be put on the same line, and it is contrary to justice that the special gift of acquiring property* [Vermögensgewinnung] extended by God to a person and the special blessing extended by God to a person should bear no fruit to him. And in terms of outcome, it does not constitute a higher level of earthly condition that one person has just as much as another; but that, in the form and measure of property* there exist diversity and mutual supplementation as members of society.

The maintenance of the poor is by all means a command for the legal order as well (poor relief institutions, arrangement of contributions for the poor). The human community must in the extreme case provide for the life and existence of each and every individual. However, it does not do this by virtue of material [sächlichen] solidarity in the goods of the earth, meaning that as soon as one has them in possession one must for that reason provide for another; but by virtue of the personal [persönlichen] solidarity of the human race, in accordance with which, regardless of who possesses what, the race maintains its existence by personal performance and service. For this reason what is involved here is, firstly, not equality but only extreme need, and, secondly, even here not as property but as support, alms. This is not based on any entitlement on the part of the poor but on the ethical-legal duty of the community[5]; and he <50>who is unable to provide for oneself, be it his own fault or the special dispensation of God, is not owed full entitlement and full honor in the community.

§. 25. Equality of Distribution of Land

Somewhat different from the community or equality of goods is the concern to maintain each family in its landed property, and in the case of solely agrarian peoples, for each family to have landed property distributed to it. Although not a command, because of the impossibility of its unconditional implementation, it should nevertheless be a goal of the legal order. Here above all belongs the Mosaic year of Jubilee, the consequence of the idea that divine love extends to each family its own property, which human freedom cannot change without limit and contrary to this goal. Here belong the Germanic stipulations of inalienability, or difficulty of alienation, of landed property in the family. This is not in the least contrary to community or equality. Even with the institution of the Jubilee year, inequality remains in accordance with the increase of the family and the utilization of the land. These institutions are not an elimination but much rather the implementation of the idea of property, because they have in prospect nothing else than that property exist not merely in general (in abstracto) but with specific persons (in concreto).

Nor is the concern to combat excess inequality to be rejected. For example, Plato in his book The Laws and other writers listed by Aristotle taught that through the establishment of a maximum, or by some other means, a greater equality of property* should be promoted, and Greek institutions, especially in the Dorian states, were based on the same intention. Nevertheless, the goal here is more of a negative, compromising sort, that the one not receive too much at the start, rather <51>than being of a pure, exemplary character as with that other case, which is of an affirmative, independent provision, providing that each family for its own sake, apart from any comparison to others, have property to maintain or distribute.

Nowadays one unjustifiably seeks to abolish all institutions of this sort as being contrary to free private disposition. Although property itself is by nature a thing of free private disposition, the purpose for men to have property is still a public one. Therefore, although no positive guidance of private disposition is admissible, the restriction of free private disposition, to wit, alienation, is so. None of these institutions are, like community of goods or equality of goods, contrary to the institution of property, but only modalities of the acquisition of and trade in property. Their further evaluation therefore forms part of the doctrine of national wealth [Volksvermögen] (see Book IV).

§. 26. The Origin of Property

The vocation of man regarding property requires an initial distribution of the goods of the earth that are open to all. This was everywhere to take place in an orderly fashion. Thus, in the first human society this was to take place through allocation by forebears or through taking possession by reciprocal consent, as Abraham said to Lot: “if you decide to go to the left, I will go to the right; or if you decide to go to the right, I will go to the left.” In this manner, the peoples were to divide the possession of the earth among themselves. However, in accordance with the character of the human race, from the beginning violence and struggle came in the place of amicable settlement.

The beginning of property among the peoples is therefore occupation of the land. This is based in the vocation of <52>peoples, which is to carry on an ordered ethical existence, the necessary condition of which is the exclusive possession of a certain land. The right of the people to its land is therefore based not on the mere act of taking possession, which is much rather only a precondition, but on the ordered ethical existence that it in fact establishes on that land, and on its power to maintain that existence. Therefore, the lack of an owner in the initial occupation is by no means the decisive factor.

The beginning of property among a people already in possession of its own order is not occupation through individuals but distribution through the ruling authority. For all property in the final analysis is derived from landed property. The material of enjoyment and labor are the product of the ground, and the pasturing of livestock and the hunting of game presupposes property in land. Landed property is however among nearly all peoples originally divided out rather than left to arbitrary occupation. The Promised Land was conferred to the Jews by tribes and families, in Greek states the citizens kept the landless out of the state, and in Rome private ownership of land took place through assignation; the kings and princes of the Germanic peoples distributed conquered land as fiefs among their followers. This is in accordance with the essence of property. In its initial origin, it is not grounded in one’s own power but on authority, it is not something attained but something received. On the other hand, its independence begins immediately; the initial distribution is irrevocable, and upon this basis property is further acquired through the particular act and destiny of each individual.<53>

§. 27. The Ultimate Justification of Property

The law-idea of property is as original as that of contract or the state itself; for this reason, the validity of property by no means presupposes either a contract to that effect or the state. Something different than contract or the state is however a community of legal consciousness and observance. This is by all means a precondition for the realization of property, because without it the law-idea of property would lack the specificity necessary to its realization, e.g., how is property acquired, through occupation or only first through usucapion? And how is it lost? etc. This is however no less true for every other legal institution, especially contract and the state itself. The controversy concerning whether property is binding in itself or only in consequence of agreement is hereby settled by reference to the fact that no law-idea (rational law [vernunftiges recht]) is in force in itself but must first be positivized (Book II, ch. 2).

§. 28. Property* Extends to Acts

The object of property* is first of all material things [Sachen], the right to which is property in the strict or technical sense. However, the acts and performances [Leistungen] of other persons are also the object of property* because they generate effects in the material world, and therefore – be it through the bestowal of things, be it even direct – they serve to provide satisfaction no less than do material things. In accordance with the general significance of property* – in which personality freely manifests itself in the manner of satisfaction, in the shape given to lifestyle – control and the power of disposition are required with regard to these performances as well, in like manner to material things; here in particular, this is the security by which they can be counted on, so as to be able to appoint <54>one’s life. This guaranteed power of disposition over another’s [fremde] actions is the concept of obligation (obligatio) and is the other part of property* besides property, to be distinguished from bare factual performance (datio). In this manner, one person serves the other as material, as a thing, but only for individual outward actions. The person himself and the inner personal bonds or outward expressions of the same cannot be the object of property. The object of obligation is therefore neither the person of another nor the performance directly, considering that there can be no immediate disposal, even factually, over performance; rather, the object is the performance of another through the instrumentality of his will, thus this will itself as bound, in order by means thereof to be able to bring about performance according to place and time; this is the legal bond (vinculum juris). Therefore, the obligation always firstly has a future object in mind, and when this moves into the present, in fulfillment, it also spells the obligation’s termination (solutio). In accordance with the solidarity [Zusammengehörigkeit] of men, there exists (potentia) a general mutual capacity for performance and therefore also of obligation. On the other hand, in line with their freedom, in order for obligation to make a real appearance (actu) there must be a special occurrence (causa), as a rule voluntary acceptance [Uebernahme]; accordingly, the obligation is always a bond between specific persons (creditor and debtor).

As a result, the total idea of property* is this: the earth with its goods (including human performances) is the substrate of human satisfaction, realized however by means of guaranteed special entitlement of individuals, the goal being the free shaping of individual life. In this manner there arise just as many centers of property* spheres [Vermögenskreisen] as there are people, the material of which is partly things, partly legal obligations to perform on the part of other men.

<55>Property* is however typified by property because material things are the sole indispensable and the most significant means of satisfaction, while obligations are dissolved in the bestowal of things or, in more developed social conditions, virtually always find a complete equivalent in things. Property is therefore the central point to which all other property* rights relate. All property* however has to do with goods of general and exchangeable value. This lies in the nature of matter, it being corporeal means. The representative of general and exchangeable value is money. Only that which has money value can be an object of property.

§. 29. The Twofold Purpose of Property: Satisfaction and Control

The purpose (τέλος) of property* is dual: satisfaction through external objects, and control over them in order freely to give shape to one’s way of life; however, the two are inseparable and stand only in relation to the other.

Satisfaction of needs is the constructive impulse of the law of property*; through it the various institutions comprising that law take shape, e.g. that there be property, servitudes, lien, purchase, exchange, hire, etc. However, the general character displayed by all its institutions is control, the free, secure disposal by the individual, unconditional subjective entitlement. The former determines the shape of the institution, the latter the role of the person in it. Therefore rights are the only content of the law of property*, duties only as the consequence of those rights; external matter is merely passive, it imposes no commitment, and the rights here concerned are freely disposable. This is its peculiar character, which is found in no sphere of law outside it.

<56>The character of control in property* rights is the general requirement that cannot be lacking in a legal system; but the excellence of a legal system consists in satisfaction being made possible in the most various and complete manner, while leaving this character inviolate. The older legal structures were mainly determined by the consideration of satisfaction as the first and natural goal of property. The idea of free unconditional secure control first makes its decisive appearance in the Roman law, but in such a one-sided and rigid manner that the initial goal of satisfaction or utility (utilitas) often led, for example, to legal transactions being seen merely in terms of the bare will and its justification, not according to their inner purpose of gratification; for this reason, for example, no exception of deception or repayment could stand against a stipulation. This was offset in later development (praetor, Caesar). In German law, both principles permeate each other. Thus, in contrast to the former, property* in its full organic correlation is viewed as an institution [Anstalt] of human common satisfaction, and therefore the law of property* is not conceived apart from the relation to the creation of property*. While the Roman law conceived the world of goods simply as pre-existing, the objects of which are appropriated and mutually distributed by individuals through their will, Germanic law views goods likewise as being produced continually anew by the human community, according to which the consideration of this production and its stimulation has to be a decisive aspect likewise for the manner of appropriation and distribution. As a result, the vocation of classes [Stände], in accordance with their manner of earning a living [Erwerbtätigkeit] and the political position based on this (the landowner in general and the nobility in particular, followed by the business [Gewerb-] and trading classes, etc.), has its influence on the law of property*. This is an advantage of Germanic law over Roman law. The Romans brought the law of <57>property to fulfillment simply with reference to itself; but the relation of the law of property to the economy and to political conditions must be granted essential influence, in the spirit of Germanic law, although in terms of its content this naturally must change with changes in the economy and political conditions themselves, and with the changed position of classes.

§. 30. False Justifications of Property: Kant, Hegel, Locke

The older school of natural law taught an original community of goods (communio primaeva); in this concept it usually confounded the legal establishment of common usage and the factual condition of general arbitrary seizure. Property however it conceived as the consequence of a mutual contractual establishment.[6] This continued up until Kant, who by contrast deduced property as an original right of the person, actually simply from the idea of freedom and the will, and thus also with the meaning of a purposeless power over the thing. The acquisition of property according to Kant is therefore the act by which a person subjects the thing to his will – seizure [Besitzergreifung]. Hegel follows him in this.[7] Both men merely consider the power of people over the thing, not their dependence on the thing. Not only is the first aspect of property, the satisfaction of needs, hereby nullified or contrary to nature made into something secondary, but even the other aspect, free disposal and control, is not conceived in its true signifi <58>cance. The meaning of property does not lie in its being an expression of human freedom, that man has a passive object at his command and in so doing celebrates his triumph as a person (this is much more merely the factual power of mankind over nature, not the legal power of a person over against another) – but that by means of this command he freely gives shape to his way of life and in this way manifests his individuality.

Besides this theory of Kant’s and Hegel’s, there is the fundamentally divergent one of Locke’s. Locke deduces property from need and utility, because man, as experience teaches, cannot exist without property, and the acquisition of property is therefore to him the act by which a person produces a thing useful to human need – labor. Here we have the reverse conception: the higher meaning of property, the activity of personality, is completely disregarded. The former theory of property is the consequence of the rationalistic viewpoint, the latter the empirical viewpoint.[8] Neither deduction provides an answer to the question as to what it is that gives a person the right over against others to take possession of a thing for himself or to process a thing for himself.

[1]This is Stahl’s own definition of Vermögen, an umbrella term covering both property and contract. In the Roman legal tradition, property and contract together form the “law of things.” In the German legal tradition, this concept of thing was developed into the concept of Vermögen, which roughly corresponds to “assets.” Therefore, in the German tradition both property and contract are forms of assets. The implications of this understanding cannot be further explored here. In this translation the word Vermögen will be translated as property*, in order to distinguish it from property in the strict sense, which in German is Eigentum – RCA.

[2]The expression lately arisen, that property is an office [Amt], is inappropriate. For office merely describes an effectiveness for the entirety, for the public, while the first thing and substrate of the institution is one’s own satisfaction, and therefore free disposition the most predominant; here the concept of office has no place.

[3]Thus Aristotle (Politics, Book II, Ch. 3) rightly offers Plato the objection that he, in that he denies his “Guardians” separate property, also cuts them off from the virtue of generosity, communication to friends.

[4]In this sense the older writers are justified in viewing property as a consequence of the Fall.

[5]With regard to there being original legal duties and necessities which are not the consequence of the entitlement of another, see Book II, §. 34.

[6]For more on this see Vol. I, p. 145.

[7]“The rational in property does not lie in satisfaction of needs, but in this, that the bare subjectivity of personality is subsumed” (Natural Law [Naturrecht – a.k.a. Philosophy of Law], §. 41). This selfsame property is further described as “the reality of my freedom in an external thing,” which just for that reason “is a poor reality” [eine “schlechte Realität sey”]; see §. 39 as well.

[8]See Vol. I, p. 317.