Absolute ownership and legal pluralism in Roman law: Two arguments

• Jurisdiction: South Africa
• Date: 15 August 2019
• Author: Helen Scott
• Pages: 23-34
• Citation: 2011 Acta Juridica 23
• Published date: 15 August 2019

Absolute ownership and legal pluralism in

Roman law: Two arguments

HELEN SCOTT*

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. Aspecies 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 concep-

tion 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 concep-

tion to a more f‌lexible version of Roman dominium.

I INTRODUCTION

What does it mean to describe Roman ownership as ‘absolute’? Is this an

accurate description?

This is a question familiar to teachers of f‌irst-year Roman law students.

Roman ownership – dominium – is conventionally one of the hallmarks of

the civil-law tradition prevalent in the legal systems of continental

Europe, one of the points upon which it can be fundamentally distin-

guished from the Anglo-American common-law tradition.

1

This distinc-

tion makes it a natural starting point for both English and South African

law students of Roman law and comparative legal history. Yet any

* BA (Hon) LLB (Cape Town); BCL MPhil DPhil (Oxon). Professor, Department of

Private Law,University of Cape Town.

1

Eg see J Gordley Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment

(2006). Dominium – the ownership of classical Roman law – appears to have emerged towards

the end of the late Republic. Viewsdiffer as to the position prior to that: see further below.

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2011 Acta Juridica 23

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