The legal theory is that property exists because the law says it
shall. This expresses a truth, but is no more than a truism. The law
determines the limits of property, but what determines the limits of
the law? What practical or social justification is there for passing
and continuing such law? The legal theory does not contain a final
explanation. Each of these theories has its defects, but each points
to some fact important and significant, at certain times and places,
in the explanation of this widespread institution.

§ 5. #Origin vs. justification#. The question of the origin is not the
same as that of the present justification of the existing system of
private property. The institution of private property has evolved
under diverse conditions. In early societies individual property
rights were not very clearly marked. Every tribe asserted against
other tribes, and tried to uphold by war, its claims upon its
customary hunting grounds; but the claims of the individual hunters
on land within the tribe did not often come into conflict. Private
property at the outset was in personal possessions, ornaments,
weapons, utensils, which were very meager in that primitive society
in which it was the custom "to go calling with a club instead of a
card-case." Only later came individual property in land. A few years
ago it was generally believed that the organization of the old German
tribes was politically an almost perfect democracy, and economically
a communism in which all had equal claims upon the land. To-day this
opinion is very seriously questioned. It seems probable that there was
a goodly measure of communism in the control and use of lands (tho not
in other things), but this was largely confined to an oligarchy of the
favored; whereas the masses lived in subjection, cut off from all but
a meager share in the common lands. However that may have been, strong
forces within historic times have put an end to the common ownership