A Cultural History of Law in the Middle Ages by Emanuele Conte;Laurent Mayali;

Author:Emanuele Conte;Laurent Mayali;
Language: eng
Format: epub
Publisher: Bloomsbury UK

CHAPTER SIX

Property and Possession

TYLER LANGE

Are property and possession a binome or are they two distinct concepts? That is to say, is there a legal distinction between possessing something and owning something? Simple possession or physical detention has not always and not everywhere been clearly distinguished from full ownership or legal proprietorship, above all with respect to real property. Considering European cultures of property over a thousand-year period confronts us with the need to navigate between shifting conceptions of elite identity and disparate doctrines and practices of property concerning slaves, real property, family property, church property, fiscal property, movable property, and all sorts of proprietary and possessory rights.

What follows focuses on real property because, as early medieval archeology and later medieval inventories illustrate, the quantity and value of movable property was greatly exceeded by the importance and value of rights in land. For most, subsistence depended on the availability of land to cultivate. For a few, subsistence and power depended on the right to appropriate some portion of cultivators’ surpluses. There will be much at the outset about elite Franks, because the Franks and their habits of landholding dominated early medieval Western Europe. Cultures of property are heavily influenced by elites’ practices, mentalities, and aspirations in this world and in the next. Whether peasant or aristocrat, each individual was torn between the imperative of survival in the here-and-now, aspirations to lasting family wealth and power, and individual hopes for salvation.

FROM ROMAN ANTIQUITY TO THE MIDDLE AGES

What then was property? We might first ask jurists, then anthropologists, and finally historians. The Roman jurists excerpted in the sixth-century Emperor Justinian’s compilation of prior law had lasting influence on conceptions of property over the thousand-year period covered by this contribution, although it was diffuse and indirect prior to the twelfth century. In Justinian’s compilation, property or dominium is defined only obliquely, for instance, through modes of acquiring it (D. 41.1 de acquirendo rerum dominio). It has been suggested that dominium originated in the absolute power of the slavemaster over his slaves, and was only later extended over real property.1 This is persuasive, particularly as the second-century jurist Gaius divided the subjects of the law into persons, things, and actions, the former capable of ownership, the latter things (including humans) capable of being owned, and the last (primarily) means of acquiring ownership of or rights to things. Justinian’s textbook, the Institutes (2.4), defines usufruct as “the right to use and enjoy another’s things without destroying them (ius alienis rebus utendi fruendi salva rerum substantia),” implying that full ownership permitted the destruction of the principal. Later jurists drew just this conclusion: the French jurist François Hotman (1524–1590) wrote that “ownership is the right and capacity to use or abuse any thing insofar as permitted by civil law (dominium est ius ac potestas re quapiam tum utendi, tum abutendi, quatenus iure civili permittitur)” (Hotman 1558: ad v. Dominium). Full property was for the Romans the capacity to use and to abuse a human, piece of land, or object.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.