REVIEWS
| Date | 01 January 1940 |
| Published date | 01 January 1940 |
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00763.x |
REVIEWS
24
I
REVIEWS
THE
OF
PROPERTY.
By VINDING
KRUSP.
Translated from the
Danish by
P.
T.
FEDBRSPIEL.
Oxford,
1939.
Pp. xvi
+
495.
80s.
The author of this book, Professor V. Kruse, plays almost the same
part in the development of Danish and Norwegian law as may be attributed
to Sir Robert Torrens in the history of Australian Land Law. Kruse
is the great reformer and moderniser of Danish Property Law. The
Thinglysning-that is Publication--Law of
1926
is
his work. This law
created
a
new and better system of transfer of immovable rights and
a
method of making these rights publicly known which differs from the
Torrens system, the German registration system, the French methods
of
transcription and inscription and the English system. Therefore his views
on Property Law as
a
whole are worthy of being carefully studied both
in
his native country and abroad. His book, which is
a
contribution to com-
parative law, to legal philosophy and to the science of Danish law, appeared
in Danish in three volumes, the first of which was published in
1929.
A
German translation appeared in successive volumes trom
1931
to
1938.
The first volume has now been published in English. The English trans-
lation includes some supplements due to changes in legislation. On the
other hand it has been shortened, particularly by the omission of notes
which refer to Danish legal sources and Danish literature.
The present volume deals in its first part with the foundation and
limitations of the right of.property, and in the second part with the origin
of
this right,
its
“change,” termination,
‘I
attribution” and protection.
The notion of what the author calls “right
of
property” is not identical
with that of Roman dominium or of the French droit de
propri6t6
or of the
German Eigentumsrecht.
It
covers
a
much wider area.
It
includes all those
rights
of
which the owner is able to dispose. The author takes the word
rather in the sense in which it is used in debates on social systems. Indeed,
these systems or, more correctly, three of these systems form the starting-
point
:
the Liberal system of private capitalism, the system of Socialism--
which in the author’s definition embraces all orders of society in which the
political power, the State, operates industry or
is
invested with property,
but from which the author excludes the system of State intervention in
and regulation of trade and industry (State control)-and Communism,
including all those systems which embrace
a
general human community of
industry or property working independently of the State. He reproaches
each of these systems firstly with their
“
wanton and sweeping generalisa-
tion” from certain examples to an all-embracing law of nature, and,
secondly, with their disregard
of
all extra-economic value of property
rights. Probably nothing the author says on these points will be new to the
student ‘of political economy. Everything may have been said, modified,
proved, refuted before. Observations, however, which an eminent lawyer
makes on subjects bordering on his own carry weight and deserve
consideration.
The way in which the author deals with the non-economic elements
of
property is particularly remarkable. He distinguishes from
I‘
economic
”
property firstly
“
intellectual
”
property-such
as
authors’ and artists’
copyrights, patent rights, rights
of
design-and secondly,
I‘
spiritual”
property. With regard to intellectual property, he stresses the fact that
“if
the antagonists of private property were right, we should have to
242
MODERN
LAW
REVIEW
Jan.,
1940
believe that these rights were an obsolete human institution,
a
creation of
the law which had outlived itself,” while in these particularly new legal
types the idea
of
private property unfolds
“a
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
of
something new-a statement to which the same
objection (of “sweeping generalisation”) may be raised as the author
raises against the three economic systems.
-4s
to what the author calls
spiritual
property,
I
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.
It
is
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
or
diminish the immaterial value or aspect of the landscape, and
so
on.
But
I
do not think that
it
is
useful to set up the idea of spiritual property
in
the wedding-ring, the heirloom, or the protected land
as
apart from the
material property in these things.
It
would seem more satisfactory to
assume that there
is
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.
136,
137).
When Kierkegaard
sent love letters to the beloved of his youth, he transferred to her the
material right of property and retained the intellectual property; and
if
the addressee had presented the letters to
a
friend, who thus acquired
material property, the original addressee would have retained
a
spiritual
property by which she could have prevented publication, just
as
the sender
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
if
a
letter written by
A
to
I3
reveals the secret of
A’s
adulterous relation to Mrs.
C.,
should not Mrs.
C,
though the letter has never been in her possession, have
a
spiritual pro-
perty in it, according to the author’s theory
?
It
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
the letters.
He
eliminates firstly the conception of things or tangible objects (p.
IZI),
secondly, the distinction between rights
in
rem
and rights
in
personam.
AS
to
the latter point (p.
124)
he wants-if
I
understand him rightly-to make
sure that the right
in
personam.
too, can be regarded
as
the object
of
ownership, of a mortgage or of some other right
in
rem.
It
cannot,
however, be denied that the content of a right
an
rem
is
very different
The author wants to simplify legal theory on several points.
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