The Empire
The main legal themes of the early Empire (the principate) are consolidation (the praetorian Edict was formally ‘closed’ in AD 130 during the reign of the emperor Hadrian and enacted as statute) and refinement (through juristic writing).
The role of the praetor as the main agent of legal reform was slowly replaced by the emperor and his imperial bureaucracy. A new form of civil procedure, the cognitio extra ordinem, which coincided with the increased bureaucratization of the imperial administration, was also introduced during this period and would gradually overtake the formulary procedure.56The intellectual refinement of Roman law characteristic of the early Empire found expression in attempts to classify and structure areas of private law. Thus, as mentioned above, according to Gaius, there were two kinds of property in Roman law: property capable of private ownership, and property incapable of private ownership (along with further sub-classifications).57 Although Gaius’ attempt at classification is of course not the earliest, it is comprehensive and demonstrates the mindset of the jurists of this period. The extent to which the Roman concept of ‘ownership’ had matured is evident from the various categories mentioned in the sources.58 The standard and most important form was Roman ownership in accordance with the ius civile, described as dominium or Quiritary ownership.59 It was restricted to Roman citizens or those foreigners who had been granted a special dispensation by the Roman state (ius commercii - right of commerce). 0 Ownership of land seems to have been a particularly complex issue, especially prior to AD 212 when most free inhabitants of the Empire acquired Roman citizenship.61 All ‘provincial land’ belonged to the state (senatorial and imperial provinces) and thus could not be privately owned in the sense that dominium could be acquired over it.
Since the majority of the Roman Empire’s inhabitants lived in the provinces, however, Roman law had to grant them some rights similar to ownership over such property. The rights that individuals could acquire over provincial land are sometimes referred to as provincial ‘ownership’, but little is known about this institution. Possession as a legal concept must have been particularly important in this context.62As for the modes of acquisition of ownership, certain changes are visible. Mancipatio and cessio, while still in existence, continued to decline in importance.63face=Arial> Physical delivery of the object combined with the intention to transfer ownership (traditio) became the dominant mode of acquisition of corporeal property.64 The third method of acquiring ownership (usucapio) was substantially transformed. These changes are undoubtedly linked to the intellectual refinement of the Roman concept of ownership and the complex legal status of land in the provinces.65 This probably also accounts for the introduction of a variant form of prescription to deal with ‘ownership’ of provincial land (longi temporis praescriptio).
Another consequence of the attempts at classification in classical Roman law is the identification of ‘natural-law’ modes of acquisition of ownership. 6 These were distinguished from the ‘civil-law’ modes mentioned above in that they were common to all people and not limited to Roman citizens. They must be of some antiquity, especially the ‘seizing’ of ownerless property (occupatio). These methods of acquiring ownership had probably existed in some form since early Roman law.67 Legal remedies available for the protection of ownership and possession became sophisticated in classical Roman law.68 The earlier sponsio and the formula petitoria were now unified and classified as variant forms of the rei vindicatio, the main proprietary remedy available to the dominus.69 This remedy was available under Roman civil law solely to an owner (dominus) who had lost possession of his property and wished to recover it from anyone currently in possession of it.70 Alongside the vindicatio, a number of legal remedies arose in classical Roman law to protect ownership.
Possessory interdicts increased in number and were classified according to their function (acquisition, retention, and recovery)71.In keeping with the attempt at classification in classical Roman law, ‘limited real rights’ over property belonging to another were expanded and classified. Thus, the legal measures in the XII Tables on infringements by neighbours were developed further and placed in a single category.72face=Arial> Similarly, a distinction was drawn between rural praedial servitudes (the oldest category already extant in the XII Tables) and urban praedial servitudes.73 Other real rights over property belonging to a third party, such as those created by pledge and hypothec, continued to develop.
The main theme of the late Empire is one of ‘crisis and recovery’.74 The ‘crisis of the third century’ - that is, the period of chaos following the death of Alexander Severus - had a profound impact upon the organization and governance of the later Roman Empire. The gradual separation of the Roman Empire into the East and the West, begun most notably during the reign of Diocletian and his successors in the fourth century AD, had a profound impact upon the Roman law of property. The end of Roman rule in the West in AD 476 gave rise to a smaller Roman Empire. In the West, Roman law was replaced by a mixture of Roman and indigenous Germanic customary law (or perhaps this merely signalled a de iure recognition of a legal pluralism which had in fact existed for some time), while in the East, classical Roman law continued to exist in some form.75
Owing to the fact that the source material (mostly the Theodosian Code) for this period deals mainly with public (imperial) law rather than private law, much remains unclear about the survival of classical Roman property law in the so-called ‘post-classical’ period of AD 284-476.76 Nothing is known about the fate of Gaius’ scheme of classification during this period.
Given the broad outline of the decline of Roman law in the West after AD 476, and given the absence of any reference to classification in the Romano-Germanic law codes of the period, it must be assumed to have disappeared. By this time, elements central to his classification had been undermined. Diocletian, for example, had effectively abolished the distinction between Italic and provincial land by imposing upon Italic land taxes similar to those levied on provincial land.77 In the East, on the other hand, knowledge of this scheme was preserved and remained sufficiently available to be used by the compilers of Justinian’s Institutes in the sixth century AD.Modern scholars have identified a number of features of the law of this period. First, legal sources of the late Empire indicate a general confusion in terminology.78 Second, a general decline in legal sophistication and an abandonment of the distinction between contract and conveyance led to a transformation of the modes of acquisition of ownership.79 Acquisition of ownership by prescription (usucapio) and its variant form longi temporis praescriptio were replaced by a vulgarized form of prescription which had very few legal requirements apart from continuous possession for either thirty or forty years depending upon the circum- stances.80 There is no direct evidence about the fate of the natural-law modes of acquisition of ownership.
Legal remedies to protect ownership and possession adapted to the circumstances of the period.81 The late Empire saw the decline and eventual abolition of the formulary system in favour of the cognitio system.82 Since the latter was not predicated upon the existence of stock formulae in the praetorian Edict, the notion of the action and its formula went into decline. Not much is known about the fate of the possessory interdicts; they probably did not survive in the West, though some may have endured in the East in a vulgarized form (actio momentaria)33 Given the broad themes identified by modern scholars, it seems unlikely that much of the sophistication of real rights over the property of another in classical Roman law would have remained. As an example, one might mention the notion of hereditary lease (emphyteusis) generating a real right over imperial property. It developed in the third century AD.
3.