n Acta Juridica - Absolute ownership and legal pluralism in Roman law : two arguments
|Article Title||Absolute ownership and legal pluralism in Roman law : two arguments|
|© Publisher:||Juta Law Publishing|
|Affiliations||1 University of Cape Town|
|Publication Date||Jan 2011|
|Pages||23 - 34|
An absolute concept of ownership implies among other things a complete divorce between factual holding and legal title; further, that ownership is a unique or singular form of entitlement. However, closer examination reveals that the theory of absolute title fails to match the realities of Roman legal practice. First, the difficulty of proving ownership in a legal order which lacked not only a system of land registration but also any adequate writing technology shows that Roman law must have worked in practice with a system of presumptive title. This brought possession and ownership into much closer alignment than is usually supposed. Second, the traditional picture of Roman ownership as a unique species of entitlement likewise proves on closer examination to be unconvincing. A species of praetorian (bonitary) ownership was created when a civil-law owner transferred a res mancipi without the requisite Roman procedure (mancipatio), using instead the traditio (simple delivery) of the ius naturale. Peregrines (non-Romans) appear to have enjoyed a species of title analogous to dominium, enforced by a fictitious vindicatio. Finally, while provincial land was technically owned either by the populus (state) or the Emperor, from early on it began to be held by private individuals who enjoyed a form of effective ownership. Thus it appears that the conception of Roman ownership as absolute in the sense of abstract and singular is a modern invention, primarily the creation of nineteenth-century German scholarship. It remains possible to reach back beyond this monolithic conception to a more flexible version of Roman dominium.
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