Introduction
In most textbooks on Roman law, the treatment of the law of property is divided into four topics, namely (i) the types of ‘things’;
(ii) the different modes of acquisition and alienation of ownership of property; (iii) ownership and possession; and finally (iv) limited real rights in property.1 That this division is based on a certain elegant logic cannot be denied.
After all, it is only really possible to understand a branch of private law if one understands the scope of that branch of law, the ways in which it functions in relation to the larger legal order, and the rights operating within it. With that said, although this treatment of the Roman law of property is largely based on the original Roman legal sources, it presents a more ordered and settled picture than is visible in those sources. As modern scholarship increasingly begins to acknowledge that Roman legal thought (with specific reference to their logic and understanding of categories) was not necessarily the same as nineteenth-century German legal thought, these basic structures need to be reassessed.2 As a starting point, two of the most famous teaching manuals on Roman law, the Institutes of Gaius and those of Justinian, will be re-examined. Although these manuals were produced under different circumstances and for different audiences, it is well known that the compilers of Justinian’s Institutes in the sixth century AD used the second-century manual of Gaius as their blueprint. Since both of these works were designed to be introductory teaching manuals setting out the basics of the law, an examination of their content should provide a clearer understanding of the structure of this branch of private law.What little is known about Gaius and his work indicates that the Institutes was written as a textbook for use in teaching Roman law to his pupils.3 It is impossible to tell whether Gaius’ manual was used as a textbook in a formal setting or whether it was used unofficially to teach his followers privately.4 Nothing is known about the rest of the curriculum, but it is worth mentioning that Gaius’ textbook, written towards the end of the second century AD, only really deals with the ius civile as it applies to Roman citizens.
As it was written a few decades before the wholesale granting of citizenship to most free inhabitants living within the boundaries of the Roman Empire in AD 212, the textbook has a specific focus and should be read as such.Because of the existence of a number of introductory imperial decrees in which Justinian set out his vision for a manageable compilation of Roman law accessible to all, more information is known about the Institutes of Justinian compiled in the first half of the sixth century AD.5 According to these sources, the Institutes of Justinian was compiled after the Digest project had been finished, as Justinian had by then realized that this anthology of juristic writing from the classical period would be too overwhelming and detailed for beginner law students. He therefore instructed a three-man commission to compile an introductory work in which the basic tenets of the law were explained (drawing on the model of Gaius), updated to reflect Roman law of the sixth century AD. This textbook was designed to be the teaching material for the first year of a degree in law, the rest of which consisted of a study of the Digest and finally the Code. As Justinian gave all the parts of this compilation the force of law, it replaced all earlier law books as authoritative sources.
For the purposes of this chapter, the nineteenth-century table of contents drawn up by Eduard Bocking to accompany the Institutes of Gaius will be used to structure the discussion.6 While it is of course a product of nineteenth-century German legal thought, it represents the topics covered by Gaius accurately and allows for comparison with the corresponding sections of the Institutes of Justinian. Bocking divided Gaius’ treatment of the law of property, located in book two, into three broad topics, namely (i) the types of ‘things’; (ii) the acquisition and alienation of individual objects; and (iii) the acquisition and alienation of patrimony in its entirety.
This threefold division accurately represents Gaius’ discussion, although contemporary Romanists would classify (iii) as the law of succession, a separate sub-branch of law with great affinity to the law of property and indeed classified by Gaius as a ‘mode of acquisition’. Owing to page constraints, this branch of law will not be included in this chapter, but it is worth noting that in the Roman legal mind the connection between the law of property and that of inheritance was an intimate one.7II. THE LAW RELATING TO THINGS
A. Things are either in the category of private wealth or not (Inst.Gai. 2.1)
1) the main division of things: those under divine law, and those under human law
a) under divine law (in the estate of no one) (Inst.Gai. 2.2)
i) sacred and religious things (Inst.Gai. 2.3-7)
ii) sanctified things are also in a certain sense under divine law (Inst.Gai.
2.8)b) under human law (generally someone's property) (Inst.Gai. 2.9)
i) public things (no one's property) (Inst.Gai. 2.9)
ii) private things (belonging to individuals) (Inst.Gai. 2.10-11)
2) Corporeal and incorporeal things (Inst.Gai. 2.12-14)
3) Capable of mancipation or not (Inst.Gai. 2.14a-18)
figure io.i: Bucking's Rendition of Gaius' Treatment of the Different Types of Things
The Types of ‘Things
Figure io.i sets out Bocking's rendition of Gaius' treatment of the first of the three broad topics, namely the different types of ‘things'.8
Gaius' decision to place this topic first suggests that he was attempting to define the scope of this branch of law with reference to its content.
Providing his audience with a survey of the types of ‘things' which formed the subject of the law of property enabled the reader to form a clearer understanding of the scope of this branch of private law. Bocking's rendition of the structure of Gaius' discussion of the different types of ‘things' identifies three sub-topics, namely things subject to human or divine law; things which are corporeal or incorporeal; and finally things which are capable of mancipatio or not. In the mind of Gaius, therefore, these three topics formed the parameters within which the law of property operated. The filang=EN-US>rst sub-topic (things subject to human or divine law) appears to have a delimiting function, since ‘things subject to divine law' generally fell outside the scope of the law of property, but the remaining two sub-topics seem to fulfil a different role as they describe the characteristics of certain ‘things', all of which are subject to private ownership.9 This suggests that Bocking's rendition of the sub-topics as being of the same genus perhaps simplifies Gaius' original intention with these three sub-topics.If these three sub-topics were chosen by Gaius to provide both limiting and explanatory functions, is it possible to draw any conclusions from the way in which they were structured? It seems safe to assume that the classification of some objects as being capable of mancipatio and others not is the oldest, yet Gaius places it at the end of his discussion on the types of ‘things’. It is preceded by a discussion of corporeal and incorporeal things which, judging from the examples of limited real rights cited, must be taken to be a more recent category.10 It therefore seems that Gaius structured the three sub-topics comprising his discussion of the different types of ‘things’ in the following manner: first he introduced the branch of private law using a delimiting category of human and divine law;11 thereafter he introduced two further explanatory sub-topics in order of importance and relevance at the time — first corporeal and incorporeal things, followed by the older classification of things capable of mancipatio or not.
The content of these three sub-topics allows further insights into Gaius’ structuring of the discussion.
Gaius’ overarching introduction is that some things fall into the category of private wealth while others do not. This is followed by the summa divisio, whereby some things fall under divine and others under human law. Things subject to divine law belong to no one and examples of these are sacred, religious, and sanctified things. This category is set against those things which are subject to human law and generally (but not always) belong to an individual, such as public and private things. While Bocking’s rendition is accurate, there are some perplexing questions in the detail, which suggest that the Roman understanding of these categories (if they are categories at all) was rather different. First, Gaius does not link his introductory statement - that some things fall into the category of private wealth while others do not — with the next sentence in which he sets out the summa divisio. It is left to the reader to make the logical connection that things falling into the category of private wealth are subject to human law whereas things falling outside are subject to divine law. Bocking correctly interpreted it in this sense, but it is only in paragraph 9 that Gaius links things subject to human/divine law to the concept of private property. No justification for this tangent is provided. Second, if sacred, religious, and sanctified objects are taken to be examples of things subject to divine law (is this a numerus clausus?), this provides further insights into Gaius’ conception of this latter term. The statement in Gaius 2.4 that sacred things are consecrated to the gods above and sanctified things to the gods below at first suggests a religious connotation (in the wider sense), but subsequent passages show that these terms had a mainly public/civic meaning. This is hardly surprising given the connection between the state and religion in Roman society.13 Sacred things are those consecrated by public authority of the Roman people (with a specific dispensation for land in the provinces), while religious things become such through a private act (the burial of a body), provided the owner of the land did the burying. A similar allowance is made for land in the provinces which cannot be held in private ownership. Finally, Gaius relates that sanctified things are also subject to divine law ‘in a certain sense’ (sanctae quoque res, velut muri et portae, quodam modo divini iuris sunt). It is not known why this qualification was required, but it suggests that sanctified things did not sit well with the established division.Having established the scope of the law of things, Gaius proceeded to discuss two common classifications found in this branch of law, namely corporeal/incorporeal and those capable of mancipatio or not. The discussion of these two sub-topics in Gaius is straightforward and does not contain anything novel. After a rudimentary definition of corporeal property as things which can be touched, Gaius lists a number of examples. From these it would seem that Gaius wished to stress that ‘real rights’ (quae in iure consistunt), whether full or limited, should be seen as incorporeal things. The final topic of discussion - things which are capable of mancipatio and those which are not - contains the controversial numerus clausus of things classified in that way, together with a tangential discussion about whether beasts of burden are deemed to be such at birth or only once broken in and whether wild animals can ever be said to be beasts of burden. This discussion clearly shows Gaius as having Sabinian sympathies.
When Gaius’ discussion of the different kinds of ‘things’ is compared to that of the compilers of Justinian’s Institutes, differences appear. Before embarking on a comparison of this kind, it is important to stress that the structure of the Institutes of Justinian as depicted in the table of contents produced by Paul Krueger (Figure 10.2), does not contain the same level of detail as that of Bocking.14 Gaius had structured his introduction around three broad topics (things subject to human/divine law, corpo- real/incorporeal things, and things capable of mancipatio or not). Such a division into three broad topics does not appear in the Institutes of
BOOKTWO
1) The Classification of Things
2) Incorporeal Things
3) Servitudes
4) Usufruct
5) Use and Habitation
6) Usucapion and Long-Term Possession
7) Gifts
8) The Power to Alienate
9) Acquisition through Other People
figure 10.2: Krueger’s Table of Contents for the Institutes of Justinian Justinian. Instead, the compilers of Justinian grouped matters together in a number of comprehensive paragraphs (beginning with Inst. 2.1 on the classification of things). These paragraphs show the extent to which Justinian’s compilers altered the classical Roman law of property. First, the discussion concerning things capable of mancipatio or not has been eliminated completely from the introductory discussion in Inst. 2.1 to reflect the abolition of this legal institution inJustinianic law. Second, the discussion of corporeal/incorporeal property has been separated from the introductory paragraph on the classification of things to form a separate paragraph in Inst. 2.2. The discussion of things subject to human/divine law, while remaining in Inst. 2.1, has been altered to reflect the law of Justinian.
To appreciate the nature of this transformation, more detail is required. At the start of book 2 of Justinian’s Institutes, the reader is informed that all things either form part of private wealth or they do not. This is followed by a statement that things can either be property common to all men by virtue of the law of nature or property belonging to the state, to the corporation, or to nobody. No indication is given as to whether this latter classification applies only to things which form part of private wealth, but this seems unlikely given the broader context. In this respect, the compilers ofJustinian’s Institutes followed the same line of reasoning as Gaius. The compilers of Justinian’s Institutes provide a number of examples of the first two categories — things which belong to everyone by virtue of the law of nature and those which belong to the state. The discussion also mentions that the law of all peoples (the ius gentium) permits the public certain rights in property which belongs to everyone. As far as corporate property is concerned, a full list is not provided but merely a few examples, alongside the notion that anything whose ownership vests in the citizen body is treated as corporate property. This is a new category, which did not appear in the Institutes of Gaius. The final category - things belonging to nobody - contains a discussion of things which are sacred, religious, and sanctified. As such, it is a contraction of two of Gaius’ ideas, namely that some things are subject to divine law and that this category of things is not subject to private ownership. When the content of these three concepts (sacred, religious, and sanctified things) is investigated, certain changes become visible. First, the distinction between sacred and religious things found in Gaius (one consecrated to the gods above, the other to the gods below) has disappeared completely. Second, the act of transforming property into sacred property no longer resides with the public authority of the Roman people but is instead left to the church and its officials. By contrast, the act of making property religious remained unchanged as a private act, but with more detail about the position of co-owners and others with an interest in the land. Finally, the description of sanctified things remained largely unchanged, except for the inclusion of a reference to penalties for those who interfere with such property.
Acquisition (and Alienation) of Individual Things
Bocking’s rendition of Gaius’ treatment of the second broad topic in Figure 10.3, the acquisition ofindividual things, demonstrates the importance of the Roman concept of legal status. It comes as little surprise that Gaius used the position of a free Roman citizen as his starting point, given that his work focused on the ius civile. This sub-category was separated
B. Acquisition (and alienation) of individual things
1) by the person who acquires (or alienates)
a) acquisition or alienation by state law
i) by those with normal power of alienation
aa) corporeal things: actual delivery of a thing not capable of mancipation; mancipation; assignment in court (Inst.Gai. 2.19-27)
face=Arial>bb) incorporeal things: incorporeal things are incapable of delivery; but some can be dealt with only by assignment in court, such as urban praedial servitudes, a usufruct and an inheritance; others can also be mancipated, such as rustic praedial servitudes. None of this applies to obligations which are transferred by novation (Inst.Gai. 2.28-39)
cc) usucapion of movables and immovables whether capable of mancipation or not; division of ownership so that one person can be owner by quiritary right and another has the thing in his estate until he has usucapted; usucapion of things delivered to us by a non-owner; sometimes the usucapion will not work to the advantage of the possessor in good faith of another's thing; usucapion by someone who knows he possesses another's thing (Inst.Gai. 2.40-61)
ii) sometimes an owner does not have the power to alienate and a non-owner does (Inst.Gai. 2.62-64)
b) acquisition by natural law
i) delivery, first taking, capture from an enemy (Inst.Gai 2.66-69)
ii) force of a river, alluvial accretion, an island formed in a river (Inst.Gai. 2.70-72)
iii) a superstructure becomes part of the land, a plant put into our land, corn sown in our land; what someone writes on my paper becomes mine, but not what he paints on my board (Inst.Gai 2.73-78)
iv) making a new kind of thing from another's material (Inst.Gai 2.79)
2) acquisition and alienation by people under guardianship (Inst.Gai 2.80-85)
3) acquisition through those in power, in marital subordination or in bondage (Inst.Gai 2.86-96)
figure 10.3: Bocking’s Rendition of Gaius’ Treatment of the Acquisition ofindividual Things from two further ones which were devoted to those persons who, while free, were subject to certain restrictions in the acquisition of ownership on account of guardianship. The rationale for separating categories one and two appears to be that those in the latter category could still acquire ownership of things, but they required permission for such an acquisition. The final category seems to have been created to distinguish those who could acquire personally from those through whom we could acquire ownership of things because of their relationship to us, such as on account of potestas.
Of the three sub-categories mapped out here, the first (acquisition by the person who acquires or alienates) is by far the most comprehensive. Within this category, an internal division exists between modes of acquisition according to state law and those according to natural law. As is evident from an examination of the ‘state-law’ modes, these are all legal creations peculiar to Roman citizens. Acquisition by state law is further divided into two sub-categories, namely instances of the normal power of alienation and instances where the person’s right of alienation has been curtailed. The first category deals with the stock ‘state-law’ modes of acquisition. Again, the emphasis placed on the distinction between corporeal and incorporeal property suggests that it was a more recent category. The treatment of usucapion as a mode of acquisition of property according to state law is particularly informative as it introduces the concepts of peregrine and bonitary ownership. The second sub-category, detailing examples where a person’s right of alienation has been curtailed, refers to issues of state law such as rights in the wife’s dowry. Acquisition through natural law as a category contains stock examples and need not be discussed in detail. The two remaining categories - those people under guardianship and those subject to marital subordination - contain some interesting insights. First, in relation to guardianship, the focus of Gaius’ discussion is on the position of women and wards (of either gender). Second, in relation to marital subordination, he mentions that ownership can be acquired either via free persons or slaves.
When Gaius’ treatment of the acquisition of ownership is compared to the corresponding passages in Justinian’s Institutes (see Figure 10.2), it is clear that the compilers of the latter had a different structure in mind. First, the threefold categorization of Gaius based on legal status has been abandoned in favour of longer paragraphs with little evidence of an underlying structure. This is to be expected since the distinction between citizen and non-citizen had long since ceased to be relevant, although it must also reflect changes in the rules on guardianship and marital power. In the second place, the category of acquisition by state law appears much transformed on account of the abolition of mancipatio. Possibly as a result of this complication, the compilers of Justinian chose to commence the discussion about the acquisition of ownership (Inst. 2. i.11) with reference to the natural-law modes. The discussion of the natural modes of acquisition has been expanded considerably and continues until the end of Inst. 2.1.35, where it is followed by a brief excursus on the acquisition of fruits and on delivery as a mode of acquisition. As Figure 10.2 illustrates, Inst. 2.2-7 represent a series of loosely connected topics which range from incorporeal things to gifts as a mode of acquisition of ownership, but a closer reading reveals a more complex relationship. As Inst. 2.2.3 shows, the leading discussion is that of incorporeal things (the subject of Inst. 2.2) from which, as the final paragraph shows, Inst. 2.3, 4, and 5 should follow. When viewed in this manner, it becomes clear that the compilers of Justinian’s Institutes wished to highlight three main topics, namely incorporeal things, usucapion and its development (already visible in its most basic form in Gaius), and gifts as a mode of acquisition. In the two final paragraphs, the power to alienate (Inst. 2.8) has been altered to take account of the abolition of the guardianship of women, while in Inst. 2.9 the number of examples in which someone is able to acquire ownership through others has increased considerably.
From this survey of the structure of Gaius and of Justinian in relation to the law of property, it should be evident that their discussions lack one central element. Most modern textbooks on Roman law emphasize the type of right which is found in the law of property. The right at the basis of the law of things was the real right (ius in rem), ‘real’ being from the Latin noun res (‘a thing’). For all the apparent importance of these concepts in modern discussions of the Roman law of property, they do not feature prominently in the discussions in Gaius’ or Justinian’s Institutes, designed though they were to introduce the law of property to beginner law students.
A final question that requires exploration is whether any conclusions may be drawn from the structuring of the law of property in other parts of the Justinianic compilation of Roman law. Since the arrangement of the Digest was apparently based on the order of the codified praetorian Edict produced by the jurist Julian during the reign of the Emperor Hadrian, it provides little in the way of information regarding the structure of the law of property. While property is an important topic in the Digest, juristic discussion of the law of property only really features in a handful of titles. The earliest mention is in book 6, which deals with vindicatio and the actio Publiciana. Books 7 and 8 deal with usufruct and servitudes generally. The only other book in which the law of property is comprehensively discussed is book 41, which deals with topics as diverse as ownership, possession, and usucapion. From this it would seem that the arrangement of the books and titles that deal with the law of property does not provide much insight into its structure, apart perhaps from reinforcing the obvious point that this branch of law cannot be understood fully without taking the legal process into account.
The following survey of the Roman law of property will not provide an account of the development of each rule of law or legal concept: these matters are thoroughly explored in systematic surveys found in most textbooks on Roman law. Instead, this survey will highlight certain themes which have emerged in those surveys, with a view to providing a new narrative for the Roman law of property.