Justinianic ‘Recovery and Restoration’
The ‘restoration’ of classical Roman law in the Justinianic project is well documented and need not be examined in detail. Rather, the main changes introduced by the Justinianic compilers will be highlighted here.
It is important to establish why these were necessary and what they sought to achieve.84In relation to the classification of the law of property, certain changes were introduced as set out above. Justinianic law abolished the distinction between res mancipi and res nec mancipi (possibly reflecting the postclassical position under Diocletian, whereby Italic land came to be taxed as well).85 Although the distinction was in all likelihood by this time merely a historical relic, its abolition nonetheless triggered a number of other changes, especially in relation to the modes of acquisition of ownership.
The distinction between ownership and possession found in the classical Roman law of property was revived.8 Dominium - that is, Quiritary ownership under Roman civil law — was reintroduced. The other forms of ownership, such as peregrine and provincial ownership, were abolished, although many of these must at this stage have been merely archaic legal concepts preserved in the writings of the classical jurists contained in the Digest, and their abolition must have been an attempt to adapt the law of the Digest to the circumstances of the period.87 The other forms of ownership (peregrine and provincial) only really made sense in an empire where the personality principle in law prevailed. Since AD 212, when most free inhabitants of the Roman Empire were given citizenship, the principle of personality had been replaced by territoriality and these were no long relevant.
It also stands to reason that the reintroduction of the distinction between ownership and possession would have an effect on the concept of possession.88 As with ownership, a terminological adjustment was required. The different terms used in classical Roman law were abolished and replaced by a single term, possessio, which described legal possession with the intention of being the owner. All other forms of possession were described as natural or corporeal possession (possessio naturalis/corporalis) 89 Although classical Roman law had required both a physical and a mental component for possession to continue, Justinianic law held that possession could be retained through a mental intention alone.90The modes of acquisition of ownership also reflected changes which had been introduced elsewhere. The most important change in this area of the law was the abolition of mancipatio as a mode of conveyance.91 The compilers of the Corpus iuris civilis erased it (sometimes rather clumsily) from the legal texts of the classical period, although traces of it remained. Cessio in iure suffered a similar fate. Although it was never officially abolished in Justinianic law, it had already fallen into disuse in the classical period.92 Traditio was instated as the standard mode of acquisition of ownership. It seems that it had to be based on some just cause (sale, donation, etc.), but the texts are unclear.93
The acquisition of ownership through the passing of time (usucapio) was comprehensively reformed in Justinianic law.94 These changes are well documented and need not be discussed in detail. Suffice it to say that they must have been necessitated by the changes introduced in relation to ownership and possession in classical Roman law.
The ‘natural-law’ modes of acquisition of ownership, discussed in the Institutes of Gaius, were also taken up in Justinian’s Institutes, as mentioned above (190).
Certain changes were introduced where the law had changed since the classical period.95Limited real rights over the property of another were reconstituted in their classical form, again with certain changes to reflect the law of Justinian’s period.96 Furthermore, the law of neighbours was developed and refined under Justinianic law.97
The vindicatio again, with slight variations, became the standard remedy available to the owner to recover property from a third party.98 The classical scheme of possessory interdicts was restored, although some simplification of procedure occurred on account of the changes in civil procedure during this period.
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