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An Oriental and Gender Perspective on Realisation and Creation of Property

AUTHOR: SAYAN DASGUPTA

Any theoretical formulation or analysis of property must at the outset be noted as to what can be a theory of property, and what it entails to advance a philosophical discussion in the domain. Theories of property suffers from what is generally known as observer’s effect prevalent in the social sciences and general usage, which entails that the phenomenon, in this case a theory being studied is affected by the act of observing itself. In the lexicon of property, to answer the question of what property is, a series of “why” questions are of paramount. The question of “what is property” is intricately linked with answers of “why is property a meaningful institution” and “why do we have property”. 

The legal theories of property as a meaningful institution to sustain or which has sustained lies in distinction between explanatory and justificatory accounts. The explanatory account in all proportions tends to deepen ones understanding about the institution; a justificatory account provides a defend or legitimising directive. Both of the accounts can provide a normative understanding taking norms into consideration such as empirical and statistical accuracy, historical context, presuppositions and axiomatics. However, most of the theories of property are mere explanations for the institution of property and fails to provide a defence and legitimise it. Ergo, an addition of justification to the allocation of the material resources and assets provides more nuance and stability to a theory to stand on its own legs because of the fact that property is a normative institution.

Theories of Property 

A foray into precepts of the theories is pertinent to make a determination of the relevant theory and developing on it. The six mostly eminently deliberated theory are:

  1. The Natural Law Theory
  2.  The Labour Theory
  3. Metaphysical Theory 
  4. Historical Theory
  5. Psychological Theory
  6. Sociological Theory

The Natural law Theory lays down the principle that anyone who possesses the object is thereby the owner of the property viz. an ownerless thing attains the status just by being possessed by someone. 

The Labour Theory also known as the Positive Theory provides that any person who has put in effort, skills and labour to produce an object become the owner of that particular object by virtue of the labour.

Metaphysical Theory propounded by Kant justified property observing that a person is rightfully the owner of the object when he is emotionally connected to the object to the extent that it would cause his distress and adversely affect him if someone uses the object without his consent.

The Historical Theory produces a caricature of growth and development of property in stages. Firstly, every human being has a natural tendency to take things into possession and it is exercised independent of the law of the state. Second stage provides juristic possession viz. possession in law and in fact. Thirdly, ownership would then be recognized by law providing owner of the property with exclusive right and control. 

Psychological Theory deliberates that human has a pre-existing tendency to acquire, own and control things. Bentham supported that property is a conception of mind which lights an expectation to own and control things and use them to the fullest advantage. 

Failure of Theories of Property

The theories of property propounded in the Western philosophical society can be divided into two categories. Firstly, the notion that property is pre-social i.e., a natural right which is preceding to state and law which is propounded by Grotius, Pufendorf, Locke, Immanuel Kant, and Hegel; secondly, the notion on the contrary is property as social, a positive right which is existing by virtue of the state or law or community to secure other goals which has emanated from thoughts of Hobbes, Hume, Adam Smith, Bentham, Durkheim and Marx. These collectively form the set of Instrumental and Expressive set of theories of property. However almost every theory houses the Aristotelian concepts conceptualizing human flourishing and principles of free will; both of which are flawed in several ways. The theories lack a deontological approach and centre around human desires and needs. 

The precepts of libertarian free will at the outset must be delineated. The libertarian free will asserts that “human consciousness is not predetermined and that we are in complete control of our actions” and in a given situation, one could have done otherwise. The concepts of free will are an illusion notwithstanding the feelings or emotions. This is to illustrate that external factor that we are mostly unaware of, and over which we have no conscious control at least in part, determine our consciousness which in turn determines our decisions. 

In 1999, the celebrated master of lateral thinking, Edward De Bono, was asked by the British Foreign Office to come up with a solution to Arab-Israel conflict in Middle East. His reply to this was to send them jars of marmite. In short, he reasoned that since the average person living in the affected geographic region has a zinc deficiency, and the lack thereof causes people to become irritable and belligerent, endless supply of zinc-rich marmite would tone down the situation. This logic is sound and scientifically backed. This indicates that part of our consciousness is predetermined; not the whole. This illustration has compelled several thinkers to hypothesize that our consciousness might be entirely determined by external factors and that despite the fact that human mind is conscious, it is “no more free than the wind”.

Therefore, this in part destabilizes the Natural Law Theory, the Labour Theory, the Historical Theory and the Psychological Theory. Mirabeau has observed that theories cannot be only in realm of philosophical deductions, but needs to be relevant in the day-to-day experience and life style. Drawing inspiration from the theories formerly discussed, I would propose a theory separate from the stated theories with an undertone of Hindu scriptures related to gender and society. 

Oriental and Gender Proposition 

Hindu mythology is probably the only ‘theological’ ideology which focuses on and tries to reveal that gender and patriarchy is a social construct and has been invented. Mahabharat draws attention to a time when there was no concept of marriage and men and women were free to mate with anyone of choosing until it became relevant to establish fatherhood which by its virtue became linked to fidelity of women. Determination of fatherhood became important since property became important and for the purposes of inheritance. Hinduism provides a detailed illustration as to how humans craved immorality and this delusion supported the idea of property and inheritance of the name and wealth which would provide a virtual image of survival of the clan/family. These traces and paints a vivid structure of how patriarchy was invented in the society. 

Property was not pre-social. Humans had been nomadic for several years before settling down. Property came into existence when people wanted to come together to form a society and wanted a life of stability. This required adaptation of several modes of survival including means of sustenance. Man started using the resources around him to form a certain produce. Eventually, the resource consumption grew and accumulated which led to rise of duties and obligations for the one producing and everyone else. The one producing incurs a duty that he would not use that property to harm anyone else and would use it to his satisfaction. On the other hand, it became the duty of everyone else to not interfere in his enjoyment of the produce. This further enhance the concept of “mine and thine” and marked a territory. This subsequently enhanced when interdependency between people increased on different objects of sustenance ergo giving rise to concepts of possession and ownership of things. 

Hence, private property is a construction as a result of survival and product of experiment rather than conscious effort or pre-existing tendencies. An object comes into existence when there is a requirement of that certain object. 

Sir Henry Maine also provided for a similar authority observingproperty once belonged, not to individuals nor even to isolated families, but to larger societies, composed on the patriarchal model”. This provides an insight that the resources had been collectively owned at one point of time from which there was a deviation as a response to external stimuli. For instance, patent application generally includes documents like description of invention, inter alia drawings or other illustrative material providing reference of invention or patent claim which materialises the conception of how the object is going to be used and accounts for the history of production of ‘object’ (giving importance to labour, skills and originality). Thus, providing importance to external stimuli, the proposed theory finds context in modern society and property.

The notion of property has trickled down to identification of permanence, gender and unity of the family/clan. And it exists now for the exchange of goods, contractual considerations and self-satisfaction. Hierarchy of society plays an important part in driving a person to acquire more property and becomes a never-ending loop of consumption.

Biography: Sayan Dasgupta is a 3rd-year law student pursuing a 5-year integrated degree of B.A., LL.B. with corporate honors. He takes a special interest in constitutional law and public policy. and can be reached via mail or at LinkedIn.

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