State, law and property as social institutions

1. The State: meaning

• Max Weber: the State is a human community that successfully claims the monopoly of the legitimate use of physical force within a given territory.
• R.M. MacIver: the State is an association which, acting through law as promulgated by a government endowed to this end with coercive power, maintains within a community territorially demarcated the universal external conditions of social order.
• Woodrow Wilson: the State is a people organised for law within a definite territory.

2. Elements of the State

1. Population — no fixed size, but people are necessary.
2. Territory — land, territorial waters and airspace.
3. Government — the machinery (legislature, executive, judiciary) through which the will of the State is expressed.
4. Sovereignty — supreme power internally and independence externally. This distinguishes the State from all other associations.

Some writers add international recognition.

3. The State as a social institution

Sociologically the State is an association with a special feature: its rules bind everyone in the territory and are backed by force. Its functions are:

• Protective — defence against external attack and maintenance of internal order.
• Regulative — legislation, administration of justice.
• Welfare — education, health, social security, poverty reduction. India is a welfare state under the Directive Principles (Part IV).
• Developmental — planning, infrastructure.
• Social reform — abolition of untouchability, protection of women and children.

Theories of origin examiners sometimes expect in a line each: divine origin; force; social contract (Hobbes’ Leviathan, 1651; Locke’s Two Treatises of Government, 1689; Rousseau’s The Social Contract, 1762); patriarchal and matriarchal; and the evolutionary or historical theory, now accepted, that the State grew gradually out of kinship, religion and the need for order. Marx saw the State as an instrument by which the ruling class keeps the others in subjection.

4. Law as a social institution

Law is a body of rules of conduct recognised and enforced by the State. Sociologically:

• Sources: custom, religion, legislation, judicial precedent and equity.
• Features: made or recognised by a competent authority; general and definite; backed by sanction; applies equally; changes with society.
• Functions: maintaining order; resolving disputes; protecting rights; controlling deviant behaviour; and bringing about social change.
• Law and custom. In simple societies custom is the law; in complex societies, where custom cannot regulate strangers, enacted law takes over. Sumner said “stateways cannot change folkways”; Indian social legislation tries to do exactly that, with mixed results.
• Thinkers: Durkheim (repressive and restitutive law), Weber (rational-legal authority and the formal rationality of modern law), Pound (law as social engineering), Ehrlich (living law).

5. Property: meaning

Property is not a thing but a set of rights over things, recognised by society. The same field is “property” only because the law and custom accept that a person may use, exclude others from and dispose of it.

• Kingsley Davis: property consists of the rights and duties of one person or group as against all others with regard to some scarce good.
• MacIver and Page: property is a social institution; it is not wealth but the right to control wealth.
• Hobhouse: property is the exclusive control over things.

6. Characteristics of property

1. A bundle of rights — to possess, use, enjoy, exclude, transfer and inherit.
2. Socially recognised — rights exist only if society and law accept them.
3. Relates to scarce goods — free goods (air, sunlight) are not property.
4. Exclusive — ownership excludes others.
5. Transferable and heritable — by sale, gift, will or succession.
6. Limited — subject to taxation, zoning, acquisition for public purpose and the rights of others.
7. Varies with society — tribal communal land, feudal tenures, modern private ownership.
8. A source of status and power — Marx made property the basis of class.

7. Types of property

• Private property — owned by an individual or family.
• Public property — owned by the State: roads, parks, public sector undertakings.
• Collective or communal property — owned by a group: village common lands (gomala in Karnataka), co-operative property, tribal forest lands.
• Corporate property — owned by a company, a separate legal person.
• Movable and immovable — goods and money; land and buildings.
• Tangible and intangible — physical things; patents, copyrights, trademarks, shares and goodwill (intellectual and incorporeal property).
• Hindu law distinguishes ancestral (coparcenary) property from self-acquired property, and recognises stridhan as a woman’s absolute property.

8. Importance and changing nature of property

Property gives security and incentive to work and save, supports the family across generations, and is a basis of status, power and political influence. It is also a source of inequality: Proudhon declared “property is theft” (What is Property?, 1840) and Marx called for the abolition of private ownership of the means of production.

In India, the right to property was a fundamental right under Articles 19(1)(f) and 31 until the Constitution (Forty-fourth Amendment) Act, 1978 removed it; it is now a constitutional right under Article 300A: no person shall be deprived of his property save by authority of law. Land reforms, ceiling laws and the abolition of zamindari reshaped rural property, and the Hindu Succession (Amendment) Act, 2005 gave daughters equal coparcenary rights.

How this is examined

For property, define with Davis and MacIver, then eight characteristics and the types in pairs, ending with Article 300A. The short note on the State takes Weber’s definition, the four elements and the functions. Law is examined more often in Unit IV as a formal agency of social control.