An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
In Anglo-American law, the justification of property on a natural
principle of occupation of ownerless things got currency through
Blackstone. As between Locke on the one side and Grotius and Pufendorf
on the other, Blackstone was not willing to commit himself to the need
of assuming an original pact. Apparently he held that a principle of
acquisition by a temporary power of control co-extensive with
possession expressed the nature of man in primitive times and that
afterwards, with the growth of civilization, the nature of man in a
civilized society was expressed by a principle of complete permanent
control of what had been occupied exclusively, including as a
necessary incident of such control the _ius disponendi_. Maine has
pointed out that this distinction between an earlier and a later stage
in the natural right of property grew out of desire to bring the
theory into accord with Scriptural accounts of the Patriarchs and
their relations to the land grazed by their flocks. In either event
the ultimate basis is taken to be the nature of man as a rational
creature, expressed in a natural principle of control of things
through occupation or in an original contract providing for such
ownership.
With the revival of natural law in recent years a new phase of the
justification of property upon the basis of human nature has arisen.
This was suggested first by economists who deduced property from the
economic nature of man as a necessity of the economic life of the
individual in society. Usually it is coupled with a psychological
theory on the one side and a social-utilitarian theory on the other
side. In the hands of writers on philosophy of law it has often taken
on a metaphysical color. From another standpoint, what are essentially
natural-law theories have been advocated by socialists, either
deducing a natural right of the laborer to the whole produce of his
labor from a "natural" principle of creation or carrying out the idea
of natural qualities of the individual human being to the point of
denying all private property as a "natural" institution and deducing
a general regime of _res communes_ or _res publicae_.
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