POSSESSION

295

of will also. In possession individual's will is reflected, therefore, it must be

protected. The Massachusetts Bill of Right also states to the same effect. Kant
also held similar view. He says that "the freedom of the will is the essence of
man. It is an end in itself; it is that which needs no further explanation, which is
absolutely to be respected and which it is the very end and object of all
government to realise and affirm. Possession is to be protected because a man
by taking possession of an 'ubject has brought it within the sphere of his will,
He has extended his personality into or over that object." Hegel is also of the
same view. According to him in possession there is manifestation of
individual's will. Therefore, it is entitled to absolute respect. Many other
German philosophers have given theories of possession. In these theories,
generally, "the freedom of will' is made the ground for the protection of
possession. It is submitted that these theories are not of much practical
importance because they are based on metaphysical idea.
I Savigny.-The jurists of Historical school have given a different theory of the
protection of possession. According to Savigny, J?OSsession is :protected
because eve act of violence is unlawful. It seems that Savigny considers the
protection of possession as a ranch of the protection of the person. It is
submitted that the reason given by Savigny is not very sound, because
possession is protected not only against force but against fraud and other kinds
of disturbances also. Certain other jurists have given their views on similar
lines. The views of these jurists also are of a philosophical nature and are little
concerned with realities. The view of the later jurists are of a more practical
nature.
Windschcid; Ihering.-The views of Windsheid is that the 'protection to
possession stands on the game grounds as protection against injuria and every
one is the equal of every other m the state, and_.,!lO one shall rai_e himseii
-over the other.'' Thering, the great sociological junst makes a new approach.
According to him, possession is owne~.h~P.!'l_d_!:!fe_nsi_ve. One who
exercises ownership in fact (that is possession) is freed from the necessity of
proving title against one who is in an unlawful position. Burns criticises Ihering
on the ground that his approach assumes that the title of disseisors is to be
generally worse than that of disseisees. It is not true in fact. It is submitted that
Ihering's approach is more practical. His view that possessors in most cases are
the rightful owners might be historically inaccurate but it is convenient from
the point of view of law to regard it rightful, at least until one comes with a
better title.
Holland.-Holland's approach is still more realistic. He says that the
prominent motive in the protection of possession is probably a regard for the
P!:.eservation of peace. In modern times, following reasons are given for the
protection of posse~n :(1) Possession is . protected for the preservation of peace. It is a natural
human instinct that he does not want easily to part with what he
possesses. Therefore, an interference with possession 'leads to violence.
Thus the protection given to possession comes to aid criminal law and it
prevents a breach of peace.2
(2) Possession is protected as a part of the law of tort. It was observed
1. Cited in Holmes' Common Law.
2. See the Criminal Procedure Code, 1973, Sec. 145.