The Concept of Property in Corpus Juris Civilis by Justinian - Report Example

The Concept of Property in Corpus Juris Civilis by Justinian Introduction There are many aspects of modern life that are taken for granted as contemporary inventions, but which actually came down through the millennia from ancient Rome. For instance, the present-day legal system is so steeped in Roman law concepts and principles that until today, judges and lawyers still use the Latin terms for many of them. The concepts are so distinctive and so highly defined that our legal scholars and experts could not even find the equivalent terms in English. And of all the branches of civil law, it is the law on property where the influence of ancient Rome is most evident. Thesis Statement This essay shall show that concepts of property in Roman law, Justinian’s Corpus Iuris Civilis¸ continue to influence modern jurisprudence today. Justinian’s Corpus Iuris Civilis Corpus Iuris Civilis (literally translated into “the body of civil law”) is a landmark document that is the first known attempt to codify a set of laws into one official compilation. It was not always the case that Roman law was an organized body of rules by which society lived. Prior to the reign of the Byzantine emperor Justinian I, which began in 527 AD, the laws of Rome were in great disarray, existing piecemeal in several documents, decisions or opinions of jurists, but were highly unorganized. Much of the law was conveyed by tradition – that is, by the spoken word, rather than in writing. This was called the customary law. When Justinian I began his reign, he felt that the best way for him to unite the empire was through law. He thus took it to the task of compiling the mass of laws into one organized code; the result was the code called Corpus Iuris Civilis. They were contained in Twelve Tables embodying the most fundamental concepts of the Roman legal system (Erwin Grueber, A Commentary on the Title of the Digest ‘Ad Legem Aquiliam’ (IX.2), 2004). It is important that this bit of history be appreciated when studying any aspect of Roman law, in order to explain why contradicting ideas sometimes appear in the Twelve Tables. Unlike present-day legislation which proceeds in an organized manner, the Twelve Tables was an attempt to codify thousands of legal opinions and decisions from literally thousands of jurists, that have accumulated for hundreds of years. What is important, however, is that the idea of Justinian to codify is probably the only reason why we still base out laws on these basic principles. Property in Roman Law Probably one of the most thoroughly discussed topics in Roman law, save the statutes defining personal relations and obligations, is that of property. Even then, property was the most contested issue in the tribunal concerning civil rights and obligations. Prior to Roman law, property was considered by most societies either as belonging to everyone (communal) or belonging to God or the gods. Roman law developed the concept of the dominium, or absolute ownership title, against which no claim can prosper. Stated otherwise, if a person had an established dominium over a thing, then his right over it is inviolate against all other claims to the thing. The thing may be tangible or intangible, already existing or which will still exist, common or specific. For the Romans, therefore, property was not so much a thing as it is a set of rights with respect to a thing, which the owner – he who held dominium over it – was entitled to enjoy, and which must be respected by all others. This is contrasted with possession, which is just the right to hold or posses, but does not include the other rights of ownership (Max Radin, Fundamental Concepts of the Roman Law, 1925). The Romans distinguished different types of dominiums, which defined different rights over the thing owned. First, there is dominium directum, which is direct ownership of the thing owned. It denotes full control of the property, but does not include the right to use or alienate it. This is evident in the case of a holder in life tenure, such as persons who have family property in their name, but who are not allowed to dispose of it, or use it to exhaustion. It is different from dominium utile or beneficial ownership, which is the right to use the property but not the right to alienate it. Dominium utile may be found today in the case of people who have transferred their property to their son or daughter, but who retain the right use it until their death. Dominium plenum, on the other hand, is unlimited right to own and use the property or dispose of it if desired. It is also called alloidal right or fee simple. There may be combinations of these various rights. Dominium directum et utile is the complete and absolute dominion in property, the combined right to title and exclusive use. IT is equivalent in its nature to fee simple or dominium plenum. There also is dominium eminens, which is the right of eminent domain. This is commonly known as the right of the government to take over private property or estates of individuals, in order to be put to public use (John Bouvier, A Law Dictionary, 1856). More concisely, it is the right of the State to annex, assume, take possession or, and usurp private property for public use (William C. Burton, Burton’s Legal Thesaurus, 4th edition, 2007). There are numerous legal maxims that are still quoted in the decisions of present-day courts of law in their original Latin, which are only barely approximated in English. Dominium non potest esse in pendenti means that ownership cannot be suspended; it either is or it is not, and if it is, then it is always effective. Duorum in solidum dominium vel possessio esse non potest means that two persons may not be vested with sole ownership or possession. This is different from joint ownership, in which case a different set of laws is effective (Barry Nicholas and Peter Birks (ed.), New Perspectives in the Roman Law of Property, 1989). It is evident that property connotes several rights that the Romans distinguished from one another. The include ius-utendi or the right to use the property; ius-fruendi or the right to enjoy the fruits of the property; ius-disponendi or the right to dispose; ius-abutendi or the right to abuse; ius-vindicandi or the right to recover; and jus-possidendi or the right to possess. Of all the rights to property, it is the ius-disponendi or the right to dispose that belongs solely to the full owner under dominium plenum. Justinian himself said, “Nothing is more conformable to natural fairness than that the wish of an owner who wishes to transfer his property to another should be held valid” (William Livesey Burdick, Principles of Roman Law and their Relation to Modern Law, p. 347). Before Justinian, ownership could not be transferred by mere traditio or delivery. During his time, transfer of ownership became simpler in order to accommodate aspects of ius gentium (literally “law of nations”, or the law of the Roman empire over conquered nations) that are advantageous to it. While ownership may be conveyed by traditio, not all things delivered necessarily included transfer of ownership. For ownership to transfer, it was necessary that a legal ground (or “justa causa”) exist. In the case of nuda traditio, or simple delivery, the rights of ownership did not transfer. There must be an intention to transfer ownership based on a just cause, such as sale or gift, in order for legal title to transfer. It is this distinction between possession and title that is one of the fundamental concepts of Roman law on property that is of immense importance in contemporary property law. Synthesis and Conclusion Roman law concepts that were first codified in Justinian’s Corpus Iuris Civilis in the 6th century AD are not only influential in today’s law in several countries, but are the cornerstone guiding principles of both legislation (enacted by law making bodies) and jurisprudence (decisions of the judges in the courts). In legal concept, “property” refers to the rights one is entitled to exercise upon a thing owned, as against the layman’s idea of property being the thing owned. Romans distinguished among the different rights of an owner, which include the right to possess, to use, to abuse, to enjoy the fruits thereof, to dispose, and to recover. To this very day, these are the same rights to which owners of property are entitled. Principles governing property then are also the same principles governing rights to property now. In retrospect, when principles are based on the natural laws of justice, the truths they profess will always be valid because they are timeless. Vice-versa, when laws run contrary to humankind’s fundamental sense of justice, such as apartheid, they are doomed eventual failure by the weight of their own inequity. That is why it is remarkable that Justinian’s codified laws stood the test of the millennia and still, very relevantly, apply to this very day. 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