Jurisprudence of Person and Property; an Experience of Nepal

Abstract

Persons are those natural and legal entity who or which can carry rights or duties. The word ‘person’ was derived from the Latin word ‘persona’ which means simply a mask. Gradually person was called for those who performed drama. Later, all the audience of the drama was referred as a person and gradually all the persons who were residing around the theater were called person and finally the person referred to capable natural person. Later, it was prolonged to legal persons as well. However all the natural person cannot be taken as complete person i.e. children, lunatic, bedridden, saint, intoxicated person etc; they are semi person. In contemporary time, there are two kinds of persons which are natural person and legal person. There is no double personality but there can be double capacities. Animals, idols, unorganized fund, riot group etc are not person because they cannot carry rights and duties. If trust alike mechanism is established for the benefit of them, it is a person. Personality begins with birth and ends with death. Under legal person, there are corporate sole and corporate aggregates which are recognized by fiction theory, purpose theory, concession theory, bracket theory, and realist theory. However, sanctity of person is applicable to natural person. Property is the gift for personality to lead their life and protect it. There are corporeal property and incorporeal property. Corporeal property includes moveable and immoveable property whereas incorporeal property refers to 'jura in repropria' and 'jura in re aliena'. 'Jura in re-propria' includes intellectual property whereas 'jura in re-aliena' includes securities (mortgage and lien), servitude, lease, trust. There are different concept of property under natural law theory, labour theory, metaphysical theory, state theory and sociological theory. Moreover, possession, prescription, agreement, inheritance, partition and ownership are the method of property acquisition. As person wants to hold property to support their livelihood and existence, sanctity of property is established for natural person not with legal person. However, there will be the legal guarantee of the property of legal person with the exception of public benefit principle. In fact, sanctity of property in created from sanctity of person from analogy. So sanctity of property along with sanctity of person is fundamental issues of natural law school. Yet, all philosophy directly or indirectly are relating to person and property. So, it is the central issues of jurisprudence. However, a right over property is not absolute rights because of the presence of doctrines i.e. Police Power, Taxation, Eminent Domain, Fine and Penalty, Compensation and Damages etc. International Human Rights Documents protects both sanctity of person and property.