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property law , principles, policies, and rules by which disputes over property are to be resolved and by which property transactions may be structured. What distinguishes property law from other kinds of law is that property law deals with the relationships between and among members of a society with respect to “ things .” The things may be tangible. such as land or a factory or a diamond ring, or they may be intangible. such as stocks and bonds or a bank account. Property law, then, deals with the allocation, use, and transfer of wealth and the objects of wealth. As such, it reflects the economy of the society in which it is found. Since it deals with the control and transfer of wealth between spouses and across generations, property law also reflects the family structure of the society in which it is found. Finally, because it deals with such fundamental issues as the economy and the structure of the family, property law also reflects the politics of the society in which it is found.

This article outlines the major systems of property law that have existed historically and that exist today. The principal focus is on the two major Western systems of law that have become dominant in the industrialized world: the Anglo-American system, derived from the English common law. and the civil law system, which was developed on the European continent on the basis of Roman law. The article will also compare Anglo-American property law with its counterpart in various civil law (i.e. law based on Roman law rather than English common law) countries, including Germany and modern China. Special attention will be given to the rules of property law in countries that, because of their socialist political system. did not recognize private ownership of property. Russia and Romania will be used as the main examples.

Property is frequently defined as the rights of a person with respect to a thing. The difficulties with this definition have long plagued legal theorists.

The same problem of definition occurs in non-Western societies as well. In Russia. for example, the word property (sobstvennost ) can have various meanings. In some cases it is used as the equivalent of things, belongings, or real estate. It is also used to refer to the right of ownership. In modern-day Russia, the term property is most accurately understood as the economic relations between the owner of a thing and all other persons with respect to that thing.

Property law is best understood as the complex of jural relationships between and between persons with respect to things. It is the sum of rights and duties, privileges and no-rights, powers and liabilities, disabilities and immunities that exist with respect to things. This holds true for both Western and non-Western legal systems. What distinguishes property law from all other jural relationships, then, is that the jural relationships of property law deal with things.

For purposes of this article, all tangible things are included within the realm of property law, even if a specific legal system denies the classification “property” to certain kinds of tangible things. Many, but not all, legal systems that recognize a separate category of property law also include within that category some intangible things, such as stocks and bonds, but not other intangible things, such as claims for compensation for wrongs (i.e. a tort or delict). The definition of property law used here includes only those intangible things that the legal system under discussion classifies as property. For a discussion of property law relating to other forms of intangible assets, see intellectual property law .

This descriptive definition of property law makes it possible to say that there is no known legal system that does not have a law of property. A legal system may not have a category that corresponds to property in Western legal systems, but every known legal system has some set of rules that deal with the relations between persons with respect at least to tangible things.

The descriptive definition of property law adopted for this article is far removed from what the word property means in normal English usage: “an object of legal rights,” or “possessions” or “wealth” collectively, frequently with strong connotations of individual ownership. The English word property derives either directly or through French propriete from Latin proprietas. which means “the peculiar nature or quality of a thing” and (in Roman writings after the time of Caesar Augustus ) “ownership.” The word proprietas is derived from proprius. an adjective meaning “peculiar” or “own,” as opposed to communis. “common,” or alienus. “another’s.” Thus, even before it comes to be a legal term, “property” in the West expresses what distinguishes an individual or a thing from a group or from one another.

If property law in the descriptive sense exists in all legal systems, the extraordinary diversity of the property systems of non-Western societies suggests that any concept of property other than the descriptive one is dependent on the culture in which it is found. Even in the West, as the discussion of the English word property shows, the concept has varied considerably over time.

Nonetheless, one tendency seems to characterize the legal concept of property, in the descriptive sense, in the West: a tendency to agglomerate in a single legal person, preferably the one currently in possession of the thing that is the object of the inquiry, the exclusive right to possess, privilege to use, and power to convey the thing. In the technical language of jural relationships, Western law tends to ascribe the following to the possessor of the thing: (1) the right to possess the thing with a duty in everyone else to stay off, (2) the privilege of using the thing with no right in anyone else to prevent that use (coupled with a right in the possessor to prevent others from using the thing), (3) a power to transfer any or all the possessor’s rights, privileges, powers, and immunities to anyone else (who would in the technical language be described as liable to the exercise of the power), and (4) an immunity from change by anyone of those same rights, privileges, and powers (so that everyone else is disabled from changing them).

In classical Roman law (c. ad 1– ad 250) the sum of rights, privileges, and powers a legal person could have in a thing was called dominium. ownership, or, less frequently, proprietas (though frequently enough for it to be clear that the two words were synonyms as legal terms). The classical Roman jurists did not say that their system tended to ascribe proprietas to the current possessor of the thing, but that it did is clear enough. A number of Roman legal rules denied the label possession to the person who was in fact, though not legally, in possession in order to keep legal possession in the proprietas. Further, the person legally in possession was presumed to be the proprietas. This is clear enough from the procedural rules that required a person who was not peaceably in possession of a thing to establish affirmatively that his title to the object was better than that of the peaceable possessor.

Once the Roman system had identified the proprietas. it tended to prevent him from conveying anything less than all the rights, privileges, and powers that he had in the thing. Thus, full use rights divorced from ownership (usufructus ) could be given only to a living person, and that person could not convey those rights to another. The ability of an owner to agree to legally binding restrictions on his privilege of use (servitutes ) was sharply limited. Moreover, anyone who found himself owning a thing jointly with others could require that the thing be divided into distinct ownership units (nemo invitus ad communionem compellitur ; “no one is forced to have common property with another”).

One might argue that the tendency toward absolute individual property rights in Roman law was more apparent than real. For example, classical Roman law never developed a remedy whereby an individual could, upon proof of ownership, specifically recover a thing. The owner could obtain a judicial declaration of his right to the thing, but the defendant could respond by paying damages. The Roman law of persons put extraordinary power over things in the hands of the head of the household (paterfamilias ); indeed, this power was so extraordinary that an elaborate system (peculium ) was necessary to allow slaves and sons in the power of their fathers to make binding legal transactions with things that were in fact but not in law their own. Moreover, land outside Italy was owned not by individuals but by the Roman people collectively or by the emperor, yet individuals who had use rights in such land came to have a quality of control over it that was not far different from that of the owners of Italic land, even though the individuals holding usage rights were not called owners. Finally, the sharp cleavage in Roman law between public law and private law prevented the Romans from ever developing a legal notion of protection of property as against the state. This meant not only that property rights were not so absolute in Roman law as it might first seem but also that nothing prevented many of the sorts of conflicts about land use (such as “takings” or condemnations by government entities that in the later Anglo-American legal system were traditionally the subject of private tort suits or private agreements) from being dealt with in Roman law as legislative or administrative matters.

The agglomerative tendency itself existed to a marked extent in Roman legal thought about property. It is evident not only in the ways outlined above in which Roman legal thought focused on the interests of the owner of a thing to the expense of those of others, but also in the fundamental separation that Roman law made between property law and the law of obligations (contract and delict). This latter separation was to become characteristic of all the Western legal systems, while the specific decisions that the Roman jurists made about what was to be characterized as a necessary part of ownership became characteristic of many Western legal systems, particularly the civil-law systems.

The existence of the agglomerative tendency in Roman legal thought has no obvious explanation in Roman political or philosophical thought other than the broadest of connections with general ideas of individual worth. That the tendency, coupled with the Roman law of persons, favoured the property-holding classes seems obvious. A number of its manifestations, however, cannot easily be attributed to class interest, notably the law’s refusal to allow family settlements of any but the most short-lived variety, the paucity of land-use control devices, and the failure of the law to develop any notion of protection of property against the state.