A property indicates a whole of things on which one or more people have exclusive rights.

Property with the legal direction

See also: Property right

The property is a Droit which is exerted on a good Meuble or Immeuble, Corporel or Incorporel. It is traditionally divided into three right realities:

• the fructus : right to collect the fruits of the good,
• the usus : right to use it,
• the abusus : right to have which it i.e. to destroy it in whole or part, to modify it, or to yield it to another.

These three rights can be separate, dismembering the property. It can result from it a Usufruit or a Servitude.

The owner can support different constraints, often alleviating (like the obligation to let pass the waves radios), but sometimes more constraining (right-of-way).

The owner is responsible for his properties, in particular in the event of damage on others.

Characteristics of the property

The good, object of the property, can be material or immaterial:

• the material property is most intuitive: it translates the fact that a thing can generally be used only for one person at the same time.

• the Intellectual property is a modern invention, to indicate a legal artifice which transforms into characteristic element an immaterial thing, and which by this fact is duplicable without depriving the initial holder of his thing. For example: contents of a book, a technical process (patent), a song.

The holder of the intellectual property does not hold necessarily the material property.

History of the property

Into Roman law, the property was divided into personal properties and real estate values. In Anglo-Saxon right (Common law), there is an about similar distinction between personal goods (personal Propriété) and real estate values ( real property ).

John Locke formalizes the first the concept of property presented like a natural Right:

“Any man has a property on his own person. With that nobody has any Right but itself. The work of its body and the work of its hands, we can say that they belong to him into clean. All that it draws from the state where nature it had put, it mingled its work and addition with it something which is clean for him, which makes its property consequently of it. As it was drawn from the common situation where nature had placed it, it has because of this work something which excludes the Right of the other men. Indeed, this work being the indisputable property of that which carried out it, no one other which cannot have to him of Right on what is associated for him. ” (Second treaty of the civil government)

Article 2 of the Declaration of the Human rights and the Citizen class the Property right among the “natural and imprescriptible rights of the Man”. Article 1 of the additional protocol of the European Convention of Safeguard of the Human rights and Fundamental freedoms sanctions also this right to the Européen level.

Proof of the property

In French right, the Preuve of the property is exerted by all means, i.e. that the Juge is likely to examine all the arguments or indices advanced by the parts of a litigation which are opposed on the property of a good. Among these indices can appear a testimony, the payment of the taxes… The Acte authenticates relating to the purchase of the good is a particularly strong index but it is not an absolute proof: it proves that one bought the good with another person, but it remains to be shown that this person was the rightful owner.

Property and political philosophy

The property is an element which structure all the social evolutions, and is thus particularly present in the political reflections and polemics.

On the theoretical level, the concept was criticized various manners.

On the practical level, for a long time, it is the Land and buildings which was the object of the attention (with, as of antiquity, the topic of the land reform). The Physiocrates thought thus that the land ownership was the base of any economy.

With the modernization of the economy, other elements took importance: technical mines, manufactures, and finally processes.

The property subject of competitions and wars

The property can also get along like a right of access with a maritime space, for an exploitation of resources. At the XVIIe century, the competitions between maritime powers, in particular between the Plain Provinces and the England, generated the first reflections on the natural right and the international law, with Hugo Grotius.

Any war is born from a claim common to the same property, notices Denis Diderot in the Supplément with the voyage of Bougainville. The civilized man often finds himself with the desire to have the property of others. What generates the vol. Whereas if the object were available, there would be no more flight and more lawsuit for fraudulent subtraction.

Jean-Jacques Rousseau formalized the property right in the social Contract . It inspired by the men such as Thomas Jefferson, who, with other landowners of the Thirteen American colonies of the England, revolted against the Taxe S considered to be unjust asked by the crown of England, and wrote celebrates it Déclaration of independence of the United States of July 4th 1776.

“The property, it is the flight”

If, for the authors of the declaration of the human rights and the citizen, the property is a natural Right and a Human right, for some, the property, it is the flight (famous formula of Proudhon, which affirmed later that it had been badly included/understood ).

According to the anarchistic analysis, there cannot be property without a sophisticated legal system. Thus, far from being a natural obviousness of the individual, the property is a social relation, interindividual. There are not then a difference in nature between the constraint exerted by a “owner” and that exerted by a “robber”, only one difference in form. The more so as the social differences will develop naturally with the wire of the generations (by the simple play of the chance of the life), in particular in a social system which applies the Droit of seniority, which concentrates the rights and the properties on only one head.

Property and capitalism

The birth of the Capitalisme was accompanied by a general movement of privatization of resources before common (in particular space), resulting from conquests (discovery of the America) or historically held by the Église or the Noblesse (see Féodalité).

This movement gave a profitability to operations of improvement, which before would not have benefitted the project superintendents, reinforcing capitalization. China finally guarantees by a law of March 16th, 2007 the private property, even if the ground is not concerned.

Intellectual property and secrecy

A property is a characteristic element. In any rigor, in a nonmaterial field, it is thus an unknown thing of the not-owners (without what, it ceases being specific to the owners), i.e. a secrecy.

The secrecy does not have only advantages.

• that which has a secrecy can lose it constantly (either by forgetting it, or by mislaying the material elements which carries the trace from there)
• it remains exposed with its redécouverte by another, or even with its “flight” (consultation of material elements carrying the traces of the secrecy). it loses its advantages then relative.
• the secrecy prohibited by definition exchanges between holders, exchanges which would allow new discoveries.
• the conservation of a collective secrecy implies a strong limitation of the number of holders and sometimes heavy constraints (limitations of movements, restrictions of the contacts with the foreigners, etc): that implies costs and sometimes limits with manufacture whereas the demand is keener, which reduces the benefit of the secrecy.
• etc

The companies thus developed the idea of an exchange:

• the author of a discovery profits from a temporary privilege,
• the company takes note of this discovery and can more largely exploit it.

This type of exchange supposes a legal system sophisticated, able to make support with the thirds the idea to have to wait to benefit from what one says to them today, including abroad. It also supposes a system able to make the difference well between what deserves this type of protection and what does not deserve it. The current controversies on the software or genetic information, but as on the songs and films, show as the question did not find yet an answer consensual.

Note

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