believe that these rights were an obsolete human institution,
the law which had outlived itself,” while in these particularly new legal
types the idea
private property unfolds
strange vitality, an impressive
power to grow new branches.” The author explains this phenomenon by
the remark that the “inmost reason of all private property” is to be
found in the creation
something new-a statement to which the same
objection (of “sweeping generalisation”) may be raised as the author
raises against the three economic systems.
to what the author calls
do not believe that this
conception is on the same plane as material and intellectual property. He
means “those forces which socially or individually are of a restraining
nature,” which, e.g., give “spiritual satisfaction” in the sphere of arts or
of home furniture; he speaks of things which have a personal and senti-
mental value because they belong to a particular family, and the like.
quite true that feelings of this kind ought to be protected by the law-and
they are protected (though possibly within too narrow a frame) by laws
which prohibit the seizure of a debtor’s wedding-ring, which provide that
heirlooms shall pass to the heir of the land, which protect places of historical
interest or natural beauty by forbidding alterations which would destroy
diminish the immaterial value or aspect of the landscape, and
do not think that
useful to set up the idea of spiritual property
the wedding-ring, the heirloom, or the protected land
apart from the
material property in these things.
would seem more satisfactory to
assume that there
only one property right which is of a material character,
and that the content of this right varies according to the nature of the
object, that e.g. the right of free disposal may be restricted in view of the
public interest or of the interest of neighbours, and the right of enjoying
or using the wedding ring may be strengthened against creditors in the
“spiritual” interest of the owner. What the author has in view when he
thus distinguishes three kinds of property, becomes particularly clear in
his observations on the right to letters (pp.
sent love letters to the beloved of his youth, he transferred to her the
material right of property and retained the intellectual property; and
the addressee had presented the letters to
friend, who thus acquired
material property, the original addressee would have retained
property by which she could have prevented publication, just
could prevent this through his intellectual property. Many objections
may be raised against this construction. Does not the sender of the letters,
too, retain a “spiritual” property? And
letter written by
reveals the secret of
adulterous relation to Mrs.
should not Mrs.
though the letter has never been in her possession, have
perty in it, according to the author’s theory
would be much simpler
to explain all the phenomena mentioned by assuming a right of per-
sonality which includes the right to forbid any trespass into the secret
sphere of a person, than to affirm the existence of a spiritual property in
eliminates firstly the conception of things or tangible objects (p.
secondly, the distinction between rights
the latter point (p.
understand him rightly-to make
sure that the right
too, can be regarded
ownership, of a mortgage or of some other right
however, be denied that the content of a right
The author wants to simplify legal theory on several points.