In one form or another, property rights drafted in ancient Rome continue to protect individuals even today.
posted 12.20.05
THE ROMAN LEGACY OF PROPERTY RIGHTS
Western legal systems go back to the ancient Greeks, and their ideas were significantly refined by the Romans, who produced the longest-running legal system in history. Among the most important components were those about private property rights, a key part of Roman private law, which provided rules for dealings among private individuals.
Greek merchants and commercial law
Greek merchants conducted business throughout the Eastern Mediterranean and developed a sophisticated system of commercial law. It began with private property and contracts. "The law as to possession and ownership of property was sufficient to protect it, if applied," explained legal historian John Maxcy Zane. "Damages to property, real or personal, were provided. Damages for acts to one’s animals, or slaves, were given. Leases of land were common. Actions for rent were given. Forcible entry upon possession was forbidden. Even the right to the use of a name could be litigated, and one of Demosthenes’s speeches is about the exclusive right to a name. Such law would protect the exclusive enjoyment of trade names and might prevent unfair trading.... [I]t is in the realm of contractual relations, pledges, mortgages, trading ventures, banking operations that we reach the highest development."
Greek law treated slander, assault, maiming, theft, slander, rape and murder as private wrongs, and prosecution was up to the victim or survivors, although the government took some of any resulting compensation.
In several respects, the Greek legal system was still in the early stages. There weren’t any lawyers. Rather, orators drafted speeches for defendants to deliver in their behalf. And of course, there wasn’t any bill of rights; the Athenian Assembly could vote to banish a citizen from the city without a trial, a practice later known as a bill of attainder and banned in England and the United States. Athens forced particular individuals to perform what was called a "liturgy," bearing the burdens of supposedly public services like maintaining government war ships.
Written Roman law began with the Twelve Tables. Around 450 B.C., after ongoing political struggles, fundamental Roman legal principles and practices were summarized on twelve tablets which were probably made of wood. These were displayed in the Roman Forum, so that everyone could see the rules they were to live by. Table VI had to do with acquisition and possession, and Table VII involved rights in land. So, early on, Rome recognized private property rights.
Until 287 B.C., laws were enacted by assemblies of the most politically powerful families; common people (plebs) resolved issues involving only them via plebiscites (plebiscita). In 287 B.C., after worsening disputes between the common people and their creditors, the Roman dictator Quintus Hortensius issued an edict (Lex Hortensia) which made the outcome of plebiscites binding on all Roman citizens. The Roman Senate made recommendations. But the role of the Roman Senate and plebian assemblies declined during the late Roman Republic as military men struggled for power; and after Octavian defeated opponents and established the Empire (31 B.C.), the emperor’s edicts were the principal source of law.
Extending the rule of law
Roman laws applied only to its citizens, but as Rome prospered and expanded its commercial contacts with the outside world, foreigners had to be provided with some legal protections. Accordingly, a Roman senior magistrate (praetor) was empowered to issue rulings (edicta) which became "the law of nations" (jus gentium). This wasn’t international law in the modern sense of something approved by many nations, but it did reflect an effort to extend a rule of law.
Roman laws were extended to Roman territories around the Mediterranean and throughout Europe. Historian Colin Wells observed that "The main benefit of the [Roman] citizenship in Gaul will have been to bring the new citizen under the Roman law of property, which probably meant that they could now be held to own wholly and in perpetuity land which probably under Celtic tribal law belonged to the tribe, although in some way assigned to the chief or one of the other tribal nobility." Historian John Maxcy Zane added, "the property of the clan passed into the property of the family and at last into private property in land freely alienable by individuals, a result that had been already reached among the Greeks."
Roman lawyers, the greatest of whom was Marcus Tullius Cicero (106-43 B.C.) asserted the principles underlying a rule of law. "Nothing is certainly more ennobling," he wrote, "than for us to plainly understand that we are born to justice, and that law is instituted not by opinion but by nature.... If the fortunes of all cannot be equal, if the mental capacities of all cannot be the same, at least the legal rights of all those who are citizens of the same state ought to be equal."
True, Cicero didn’t include slaves here. But he was expressing principles that would later be applied to everybody. The first step was to express the principles, and he did that with his trademark eloquence.
Roman property law began with the concept of ownership (dominium), and it applied principally to slaves and land. The principal requirements were comparatively simple: one only had to prove a legitimate transaction and unchallenged ownership for a year in the case of movable property and two years in the case of land. "There was no need to go back to title deeds of the distant past," explained historian J.A. Crook.
Although possession of a property didn’t mean ownership, in a Roman legal proceeding the advantage was definitely with the individual who had possession. Somebody else claiming a property had to show that the acquisition was illegitimate and that ownership had been disputed.
People mainly acquired land through inheritance and marriage, although there was a Roman real estate market. Naturally, a great deal of Roman property law concerned land issues.
Roman property law became quite specific about the rights and limitations of ownership. On the one hand, owners had secure rights in land. Tenants (coloni) had only the right to use land during the term of their contractual agreement, which tended to be for five years, or year-to-year in the absence of a specific agreement. If a new owner wished to discharge tenants, he could do that. Tenants who were dismissed could claim compensation for their improvements on the land, even if the improvements were made without an agreement.
One would presume that the principal reason for discharging a tenant would be failure to pay rent, although rents were supposed to be reduced in the event of a poor crop. As historian Wells noted, "The chief problem with tenants was getting them to pay their rent in bad years. The landlord could seize the tenant’s goods, but then, as Pliny rightly observes, there was even less chance of his being able to pay in the future."
A crucial point is here is that a tenant wasn’t tied to the land. A tenant wasn’t a serf. That came later.
No limits
As for limitations of ownership, Roman law provided for rights-of-way. An individual might contract to buy a piece of land subject to a provision saying that a third party could travel across part of the land to reach his or her own property.
This was Roman law at its peak of development. "All that part of the law which is concerned with business, trade, and commerce was fully developed," Zane explained. "Contracts of sale of mortgage, of pledge and all the legal implements of credit and banking and for the transfer of funds, contracts of various kinds pertaining to trading and business ventures, including insurance, the law of partnerships and corporations of almost every condition, all the law of what were called bailments and the law of loans and surety-ship and warranty, were fully developed, but were to pass away as soon as commerce was destroyed."
Okay, the Romans refined private law, which applied to relations among private individuals; but how secure was private property from the arbitrary power of government? After all, the Roman Republic was notoriously corrupt, and it was followed by a succession of emperors.
There were "constitutions" in the Roman Empire, but they had a completely different meaning than the word has now (a limitation on government power). As historian R.W. Leage wrote:
It was under Hadrian [76-138 A.D.] that the Imperial constitutions, though known in the time of previous Emperors, first became the ordinary method of legislation. The term constitution is a general one, and includes the following kinds of enactments:
(a) An oration, i.e. a proposal made by the Emperor for the consideration of the Senate.
(b) An edictum, i.e. an ordinance issued by him as highest magistrate.
(c) A mandatum, i.e. an instruction given to some particular individual, such as a provincial governor, with regard to some administrative difficulty. Mandata are not mentioned by Gaius or Justinian, probably because they dealt with public rather than private law.
(d) A decretum was the decision of the Emperor, as the supreme judicial officer, settling some case which had been referred to him.
(e) A rescriptum—or epistola—was where an appeal had been made to the Emperor in some dispute, but instead of settling the whole matter in a decretum, he merely stated the legal principles applicable to the case.
In other words, an Imperial Roman constitution described the various powers of an emperor and didn’t impose any limits on him whatsoever.
You oppose, you pay
Literature on the Roman Empire has many references to periods of "confiscations." These applied to individuals found guilty of treason, which presumably could have included political enemies. "Early in the third century," wrote tax historians Carolyn Webber and Aaron Wildavsky, "the emperor Septimus Severus greatly enlarged his private wealth by confiscating property from Senators who opposed his policies, and from citizens of Gaul and Spain who were unable to raise the heavy tribute levied upon them."
In addition, the Roman government seized much private property to make way for public works projects, and the victims apparently couldn’t expect full compensation. Legal historian J.A. Crook added that "If owners were powerful men they might stop a project—not qua owners but qua powerful men; or a tactful person like [the emperor] Augustus might prefer to restrict his new forum rather than demolish too many of the humble dwellings of the plebs. The state normally came to arrangements with owners."
"On the whole," Crook wrote, "a free Roman’s house was his castle, his labour not directed, his children not appropriated for purposes either secular or religious, and his movement and change of domicile unrestricted."
Webber and Wildavsky, however, reported that Romans adopted the Greek practice of forcing particular individuals to perform liturgies and bear the cost of holding Olympic games, gladiatorial shows or repairing roads, sewers and city walls. "Those liable to Roman liturgies," Webber and Wildavsky wrote, "had little legal protection against excessive demands on property, and no effective channel of appeal. At best, a liable subject could petition the emperor for exemption, a practice that cities tried to curb with communications urging emperors to deny such favors."
Financial demands increased during the third century of the Roman Empire. "Legal codes of the late empire (third and fourth centuries A.D.)," the authors noted, "indicate a policy designed to prevent citizens from evading the liturgies. Its ineffectiveness may be judged from successive revisions of the codes; the law set down ever more specific standards of performance together with liability for liturgies. Initially the emperors involved the principle of collective accountability…if one member was delinquent, the others paid his share. Eventually liturgies were made compulsory for all propertied citizens except nobles, military men, and clergy…. With only limited authority to enforce compliance, late Roman emperors adopted the policy most likely to insure it. Early in the fourth century an imperial edict decreed that henceforth membership in the curial order—to which men who provided administrative, logistic, and fiscal policies belonged—would be hereditary…a man could never escape his obligation. Confiscation of property was the penalty for default."
An important digest
Soldiers’ pay was the biggest single cost of the Roman government, and as the army got bigger, the emperors resorted to property taxes and other taxes. Referring to taxpayers, historian Michael Grant wrote: "What had afflicted them particularly gravely was the irregularity and suddenness of the demands that had descended upon them." In A.D. 301, for example, emperor Diocletian issued a number of edicts intended to stop tax evasion, including the requirement that taxes be paid in kind, such as with crops rather than money.
The accumulation of magistrate rulings, Senate legislation (jus civile) and court cases, plus the succession of emperors whose power displaced that of the Senate and plebian assemblies, made Roman law increasingly complicated. There were many efforts to compile and interpret the essentials. Among the most important interpreters was Gaius (130-180 A.D.) who produced the Institutes (Institutiones). Very little is known about Gaius, not even his other names, but he lived in a province, and presumably for that reason Roman jurists—legal scholars who served as consultants for lawyers and judges—didn’t mention his work in their writings. But when a manuscript copy of the Institutes was discovered in the cathedral library at Verona, Italy, in 1816, it was a revelation, because it’s the only surviving law book from the "classical" period of Roman jurisprudence (between the late first century B.C. and the mid-third century A.D.)
From the standpoint of property rights, an important point is that Gaius recognized freedom of contract: "Obligations are created by agreement in sale, hire, partnership, and mandate. They are said to arise by agreement in these cases because for the obligation to come into being there is absolutely no need for any special form of words or of writing. It is enough if the parties to the transaction merely come to an agreement.... Another feature of these contracts is that both parties come under reciprocal obligations to conform to the standard of what is fair and reasonable."
The last major Roman compilation of laws was emperor Justinian’s Corpus Juris, between 528 and 534 A.D. In Constantinople after the fall of the Western Roman Empire. Justinian named ten legal scholars to summarize everything worth knowing about Roman law, to discard all the repetitive material and resolve contradictions. The Corpus Juris included the Institutes (Institutiones), mainly taken from Gaius’s Institutes; the Digest (Digesta), selections from the jurists' writings on Roman law, most of which were done between 100 and 230 A.D.; and the Code (Codex), which summarized imperial edicts. Justinian simply declared that the Codex was the new law of the land and that previous laws were abolished. In addition, there were the Novels (Novellae Constitutiones), which were edicts originally issued during his reign.
Many people don’t realize the importance of the Digest. Historian C.F. Kolbert explained, "Vital though the jurists’ teaching function was in the legal life of Rome, for us their writing was even more important as it is through this medium that their work has been preserved, even though indirectly. We know that the literature produced by the jurists was enormous, but most of it has disappeared, and has come to us only through the quotations preserved in the Digest."
Copies of the Corpus Juris were sent to magistrates in the European, Asian and African provinces, and because enough of these copies survived, it became the principal source for knowledge about Roman law.
The fate of Roman law
After the fall of Rome, wrote John Maxcy Zane, "the fine structure of Roman law that had cost so many centuries of patient effort had fallen before the onslaughts of the barbarians. All kinds of law were debased and mixed up in hopeless confusion. In the same city or county the barbarian was governed by his law, the former Roman citizens by a bastard sort of Roman legal tradition. Written law was practically useless in populations where few knew how to write or to read. All the law was unsettled, and definiteness was lost in warring customs. Every little sway of a feudal lord had its own law administered by the lord’s own court. The men of the Church alone had any knowledge of law or of letters. A black night of lawlessness and disorder seemed to have settled down in every one of these once prosperous lands."
Some Catholic churchmen upheld the ideal of a rule of law. For instance, Saint Isidore of Seville (c.560-636) told barbarian rulers: "It is just that the prince should obey his own laws. For the authority of his voice is just only if he is not permitted to do what he has forbidden to the people.... He does not rule who does not rule rightly; therefore the name of the king is held on condition of doing right and is lost by wrongdoing."
Saint Isidore affirmed natural law principles: "Things required by natural law are marriage, succession to property, bringing up of children, one common security for all, one liberty for all, and the right to acquire those things which are capable of possession in air, earth, and sea."
Another churchman, Ivo of Chartres, said this: "A law must be honest, just, possible, according to nature and the custom of the country, convenient to the time and place, plain, written not for some private advantage but for the common benefit of the citizens."
In England, following the withdrawal of Roman legions (407 A.D.), invading Anglo-Saxons retained some Roman law, and of course the Catholic Church there observed canon law, which was based on Roman law. Then came the Norman Conquest. The Normans were Scandanavian "Northmen" who had invaded northern Gaul (France) and embraced the sophistication of Roman ways including much of Roman law, and this together with feudalism they brought to England. William the Conqueror’s youngest son, who became King Henry II, accelerated the development of English law with Roman elements.
During the 11th century, scholars at European universities revived the study of Roman law. Before the era of cheap paper, they wrote comments known as "glosses" in the margins of texts. In the early 13th century, Accursius of Bologna compiled glosses of Justian’s Digest and Code, which stimulated further commentaries on Roman law; and these provided material for Bracton, an influential commentator on English law. By the 16th century, Roman civil law had been adopted to various degrees in most European countries. "It was not so much the technical apparatus of the Roman law which proved of such value to them," wrote historian C.F. Kolbert, "but its clarity, simplicity and orderliness which have allowed this long and continuous development to take place."
Ownership and transfer
Crucial in the history of liberty, Roman law provided a means of establishing legitimate ownership of and facilitating peaceful exchanges of private property. The task remained of finding ways to protect individuals and their property from powerful rulers, and future thinkers like the 18th century Frenchman Montesquieu began by studying Roman private law.
The 44th chapter of Edward Gibbon’s The Decline and Fall of the Roman Empire saluted Roman contributions to property rights: "the hunter, the shepherd, the husbandman, may defend their possessions by two reasons which forcibly appeal to the feelings of the human mind: that whatever they enjoy is the fruit of their own industry; and that every man who envies their felicity may purchase similar acquisitions by the exercise of similar diligence.... [E]ach field and forest is circumscribed by the landmarks of a jealous master.... The active, insatiate principle of self-love can alone supply the arts of life and wages of industry; and as soon as civil government and exclusive property have been introduced, they become necessary to the existence of the human race."
The limitations of Roman law are obvious enough: the failure to embrace the principle of self-ownership (which would have required ending slavery) and the failure to limit the power of government. But what the Romans accomplish provided a foundation for liberty in the modern world.
Reprinted by permission of the author from libertystory.net. Jim Powell is a former editor of Laissez Faire Books and a prolific author.
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