PROPERTY ISN'T WHAT IT SEEMS

What Property Means

'Property isn't what it seems'

Research problem: 'Property isn't what it seems'

Introduction

Property has numerous meanings and property isn't what is seems or looks. This paper is intended to provide a broad context for the debate on the different aspect of the property like intellectual property, its analysis that will cover a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law. Indeed, the definition of property is simultaneously simple and complex. It is simple because we can distinguish a generally accepted common-sense notion of property; that is, something that belongs to somebody in a legitimate way, something that is "proper" to somebody (Doi, 2003, 147-166). It is complex because this common-sense notion is difficult to apply to particular issues, including the types of objects that can be owned, the legitimate methods for property-acquisition, and the importance of the institution of property for wealth accumulation and wealth distribution. When one gets into questions of that sort, the ensuing Pandora's Box of crucial ethical, legal, political, and economic issues may prove to be overwhelming.

Properly and legal tradition

To outline the birth and the growth of property as a legal concept, the evolution of legal tradition is divided into three phases: the customary phase, the casuistic phase, and the col1ceptual phase. This subdivision is not intended to suggest that legal history is submitted to some kind of necessary C\nd mechanical scheme of evolution, but only to point out the fact that there is a general tension in the evolution of legal systems between reliance on customs, a professionalized system of judge-made law relying on precedent, and an intellectual tradition of theoretical conceptualization.6 Historical events may disrupt or retard this tension. For example, in the evolution of continental law after the casuistic phase of Roman law, a relapse to customs occurred during the Germanic Middle Ages (400-1100 A.D.). This period was followed by steady growth of a dogmatic legal framework. Because of several factors, a tradition of legal dogmatics arose relatively late in the Anglo-American legal systems and is still less influential there than on the continent (Bennet, 2003, 10-16). Keeping this proviso in mind, we can compare and differentiate the evolution and the meaning of property within different legal systems.

I. Customary Orders

The reliance on custom for solving what we now perceive as legal conflicts is typical of tribal and conventional societies. The cultural background of such societies consists mainly often iI~tertwined network of myths, rites, and conventions. Some distinctions essential to social life in modern societies are not made by tribal man. He makes no sharp distinction between the natural and the human. Natural phenomena are perceived as the outcome of the will and whims of anthropomorphic superhuman beings. Tribal man do not draw an intellectual border between nature and convention. The authority of conventional rules and institutions is based on a mythical and ancestral origin. To question these rules and institutions is tantamount to casting ...