An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
Grotius and Pufendorf may be taken as types of the older natural-law
theories of property. According to Grotius, all things originally were
_res nullius_. But men in society came to a division of things by
agreement. Things not so divided were afterward discovered by
individuals and reduced to possession. Thus things came to be
subjected to individual control. A complete power of disposition was
deduced from this individual control, as something logically implied
therein, and this power of disposition furnished the basis for
acquisition from others whose titles rested directly or indirectly
upon the natural foundation of the original division by agreement or
of subsequent discovery and occupation. Moreover, it could be argued
that the control of an owner, in order to be complete, must include
not only the power to give _inter vivos_ but also the power to provide
for devolution after death as a sort of postponed gift. Thus a
complete system of natural rights of property was made to rest
mediately or immediately upon a postulated original division by
agreement or a subsequent discovery and occupation. This theory should
be considered in the light of the facts of the subject on which
Grotius wrote and of the time when he wrote. He wrote on international
law in the period of expansion and colonization at the beginning of
the seventeenth century. His discussion of the philosophical
foundation of property was meant as a preliminary to consideration of
the title of states to their territorial domain. As things were, the
territories of states had come down in part from the past. The titles
rested on a sort of rough adjustment among the invaders of the Roman
empire. They could be idealized as the result of a division by
agreement and of successions to, or acquisitions from, those who
participated therein. Another part represented new "natural" titles
based on discovery and occupation in the new world. Thus a Romanized,
idealized scheme of the titles by which European states of the
seventeenth century held their territories becomes a universal theory
of property.
Pufendorf rests his whole theory upon an original pact. He argues that
there was in the beginning a "negative community." That is, all things
were originally _res communes_. No one owned them. They were subject
to use by all. This is called a negative community to distinguish it
from affirmative ownership by co-owners. He declares that men
abolished the negative community by mutual agreement and thus
established private ownership. Either by the terms of this pact or by
a necessary implication what was not occupied then and there was
subject to acquisition by discovery and occupation, and derivative
acquisition of titles proceeding from the abolition of the negative
community was conceived to be a further necessary implication.
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