Key Arguments

• He grants that, according to authors like Dunod, Toullier, and Cassiodorus, prescription was introduced to protect honest possessors, prevent endless disputes, and preserve public order—"a fiction of the civil law which derives all its force from the necessity of settling differences."
• Citing Grotius, he insists that "time has no power to produce effects; all things happen in time, but nothing is done by time," from which he infers that prescription is merely a conventional legal fiction, not a natural mode of acquisition.
• He observes that all property originated in usucapion, i.e., continued possession, and therefore directly asks how such possession can become property by the lapse of time alone.
• He points out that no matter how long possession is continued—"for years and for centuries"—duration, which by itself "creates nothing, changes nothing, modifies nothing," cannot endow the possessor with a qualitatively new right (dominium) beyond usufruct.
• He accepts that the civil law may legitimately protect a possessor against newcomers (thus confirming a right already respected) and that prescription, so understood, simply secures ongoing possession.
• However, he argues that when law declares that lapse of time changes possessor into proprietor, it supposes "that a right can be created without a producing cause," changes the subject’s character without grounds, legislates where it has no competence, and thereby oversteps its proper function.
• He maintains that public order and private security require only protection of possession, and asks rhetorically why law has added property—transforming what should be a guarantee (prescription) into a matter of privilege.
• He concludes that the origin of prescription is identical with that of property, and that since property can only be legitimized by equality, prescription, rightly understood, is one more form in which the necessity of maintaining equality expresses itself, not a true foundation of absolute property.

Source Quotes

Thus, in the opinion of the authors, prescription is a means of preserving public order; a restoration in certain cases of the original mode of acquiring property; a fiction of the civil law which derives all its force from the necessity of settling differences which otherwise would never end. For, as Grotius says, time has no power to produce effects; all things happen in time, but nothing is done by time. Prescription, or the right of acquisition through the lapse of time, is, therefore, a fiction of the law, conventionally adopted. But all property necessarily originated in prescription, or, as the Latins say, in usucapion; that is, in continued possession.

I ask, then, in the first place, how possession can become property by the lapse of time? Continue possession as long as you wish, continue it for years and for centuries, you never can give duration⁠—which of itself creates nothing, changes nothing, modifies nothing⁠—the power to change the usufructuary into a proprietor. Let the civil law secure against chance-comers the honest possessor who has held his position for many years⁠—that only confirms a right already respected; and prescription, applied in this way, simply means that possession which has continued for twenty, thirty, or a hundred years shall be retained by the occupant.

Continue possession as long as you wish, continue it for years and for centuries, you never can give duration⁠—which of itself creates nothing, changes nothing, modifies nothing⁠—the power to change the usufructuary into a proprietor. Let the civil law secure against chance-comers the honest possessor who has held his position for many years⁠—that only confirms a right already respected; and prescription, applied in this way, simply means that possession which has continued for twenty, thirty, or a hundred years shall be retained by the occupant. But when the law declares that the lapse of time changes possessor into proprietor, it supposes that a right can be created without a producing cause; it unwarrantably alters the character of the subject; it legislates on a matter not open to legislation; it exceeds its own powers.

Let the civil law secure against chance-comers the honest possessor who has held his position for many years⁠—that only confirms a right already respected; and prescription, applied in this way, simply means that possession which has continued for twenty, thirty, or a hundred years shall be retained by the occupant. But when the law declares that the lapse of time changes possessor into proprietor, it supposes that a right can be created without a producing cause; it unwarrantably alters the character of the subject; it legislates on a matter not open to legislation; it exceeds its own powers. Public order and private security ask only that possession shall be protected.

But when the law declares that the lapse of time changes possessor into proprietor, it supposes that a right can be created without a producing cause; it unwarrantably alters the character of the subject; it legislates on a matter not open to legislation; it exceeds its own powers. Public order and private security ask only that possession shall be protected. Why has the law created property? Prescription was simply security for the future; why has the law made it a matter of privilege?

Key Concepts

• For, as Grotius says, time has no power to produce effects; all things happen in time, but nothing is done by time. Prescription, or the right of acquisition through the lapse of time, is, therefore, a fiction of the law, conventionally adopted.
• Continue possession as long as you wish, continue it for years and for centuries, you never can give duration⁠—which of itself creates nothing, changes nothing, modifies nothing⁠—the power to change the usufructuary into a proprietor.
• Let the civil law secure against chance-comers the honest possessor who has held his position for many years⁠—that only confirms a right already respected; and prescription, applied in this way, simply means that possession which has continued for twenty, thirty, or a hundred years shall be retained by the occupant.
• But when the law declares that the lapse of time changes possessor into proprietor, it supposes that a right can be created without a producing cause; it unwarrantably alters the character of the subject; it legislates on a matter not open to legislation; it exceeds its own powers.
• Public order and private security ask only that possession shall be protected. Why has the law created property?

Context

Later in § 3, after presenting standard doctrinal justifications for prescription, Proudhon distinguishes between using prescription to stabilize possession and the illegitimate step of treating duration as a creative cause of property rights.