Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard
Epstein discusses property rules in the Roman Law.
In Episode 2, Professor Epstein explains: How the Romans thought about private property
How modern private property rights compare to the Roman system
Who could own property in the Roman world
This lecture is part of a series with Professor Epstein on how this ancient legal system can
provide crucial insights about modern problems.
Professor Epstein is one of the most prominent legal scholars of our day.
He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow
at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the
University of Chicago.
As always, the Federalist Society takes no position on particular legal or public policy
issues; all expressions of opinion are those of the speaker.
In our prior episode on Roman Property Law, you discussed the principles of common property.
But when most people think of property, they immediately think about private property instead.
What is the foundation for private property?
Was it understood differently in the Roman Law?
So when you start looking at the way in which the agricultural system works, there's the
following maxim which appears everywhere which is you're only allowed to reap where you have
sewn.
Now why is this?
Because it's an agricultural metaphor, and what this means in effect, is that if you
take all of the effort to clear this land and to plant, to water and so forth.
Backbreaking labor.
And somebody else is entitled to harvest it, then you will never have the incentive to
plant and therefore because other people can take it away.
So now you have to have all the property rights and land.
But before agriculture you never had this.
So in a hunter gatherer society before the Roman time what you would do is you would
go into an area.
You had no front end costs.
You'd hunt the game until it was extinguished.
That was the job of the men.
You'd gather the fruit until it was exhausted.
That was the job of the women.
And then the hunters and the gatherers would move on to another location and if you had
sufficiently sparse populations in these areas you couldn’t sustain them all.
Sure enough.
As the groups started to get larger, it's more difficult for them to move.
They have to take larger territories.
Two such groups start to come into contact with one another.
You're going to have a bloody fray as to which of them is going to be able to keep the common
land or not.
But you're not going to have agriculture.
You don't get property rights and agriculture and land until you get agriculture.
But you do have strong property rights and chattels, animals and so forth because those
are things that you invest with and take with you when you start to move.
And so when you start getting to the land situation and you now had agriculture then
you have to make it as a, kind of a permanent system.
So you start to ask yourself which of the two problems is greater?
The problem of hold on the one hand, or the problem of externality on the other?
And if you're talking about most parts of land relatively small and square.
I can take mine and farm it.
You can take yours and farm it.
And it's not like a river where if I take something out of the common area, everybody
else is necessarily harmed.
There's enough and again as good.
Take some of the land and do it.
And so these people start to come up near one another.
Generally speaking it turns out most people preferred to have neighbors than to be alone.
Because just taking in the simple geometrical situation, suppose you just have two people
and you put them isolated.
Each of them in a square will have four borders that they have to protect against and they
have to do it alone.
If you put them together, now you got two things and it turns out one of these borders
is in common.
And so each of them only has to defend three border instead of four borders in the simple
construction.
And they also have an ally with which they can do this.
And so essentially what happens with territories is people want to have neighbors.
In the beginning the neighbors turn out be family members and kin and so forth.
It's not just two people it's four people and if you start doing that particular element,
what happens is you got four people in there instead of having sixteen boundary lines what
you do is you have eight boundary lines.
So you have four people protecting half the turf that you otherwise had had, and it's
quite clear that there's a natural advantage in having some neighbors.
As the states have to get bigger, you can't base this on clans.
So then you have to create a notion of citizenship so as to allow outsiders in.
You may have separate properties, but a common wall.
The Romans were very careful about their wall rules.
Essentially a wall was public property but it wasn't like a river to which everybody
had access.
It was a form of public property which was called a “res sancta.”
A sacred thing, and what that meant in effect was that nobody could subdivide and take his
part of the wall out at which point the enemies could run you over.
And so it was done, but the logic of putting a wall around the town is exactly the logic
of going from one part of land to four parts of land.
Is you have a larger core of productive activities and a smaller perimeter surrounding it.
This is geometry.
It's nothing else.
And so these kinds of relationships exist and survive in every culture at every time.
When you start trying to have fortifications and land, what you do is you have a core.
The core must have water, so as to survivors feed.
And then you have field outside the land which you can til in good times and then replete
back with your stores of water and grain.
In hard times to withstand the siege.
So you tend to build the town on a high piece of land so the guys having to shoot up instead
of down and you can see a universal pattern.
How are these principles manifest in modern times?
What do private property rights look like now?
And what happens is we now have private property rights and land.
We have neighbors.
Why do we make them private?
Because suppose it turns out that these things are open to other.
I plant seed on Monday, and Tuesday somebody decides to have a drag race across my property.
It means that I do not have the exclusive right to keep them out.
Which means that we will never have the growth.
So what takes place in every legal system known in the world is the moment it turns
out that the coordination problems are not important, but the externality problems, the
nuisances and trespasses are rather married, we move to a system of exclusive rights as
the first approximation.
And that's the way it's been in every culture.
And so what you then do is you have to worry about how you police the boundaries.
Now this of course is going to create serious problems of it's own because just as with
the water cases, the bound where the river was not an absolute.
You had all of these complicated rules, right?
Of the taking water out, for the use of beach in time of necessity.
Same thing is gonna happen with respect to land.
The boundaries are going to be fuzzy.
And so you start to develop all sorts of obligations associated with the law of nuisance.
I can't throw my filth on your land.
You can't throw the filth on my land.
Well do we want this to apply to every noise and peep we make?
That's just absolutely indefensible because there'd be no production and too much interference.
So we develop what is known as the live and let live rule.
Which was certainly part of the Roman system.
And that meant in effect that I can talk on my land even if you could hear the noise,
and you could talk on your land even though I can hear the noise.
Because we are all better off with these minimal invasions than we were with another system.
And this kind of pattern of behavior.
De minimis non curat lex.
The law does not concern itself with trifles, is a universal feature of all systems about
land law.
The absolute boundaries when you have fixed neighbors cannot be observed.
Whereas when you're talking about chattels, which you can take from your porch in the
front of the house and move it in there.
You can say to somebody don't mess your hand around with my watch, with my vase, with my
tables and so forth.
You don't have the same problem with physical adjacencies that you have with land.
Which requires that you soften things at the border.
And so then you become obligations of support.
I can't dig out to the bottom of my land and have your land fall over.
You can't do the same thing.
But on the other hand, if you want to build on your land, I don't have to support the
improvement.
What I have to do is give you notice that I'm about to take this stuff out so you can
shore it up.
So long as I leave enough in there so that the land itself doesn't fall out.
These rules, you're surely pushing in the Roman system.
But we don't have much explicit stuff about them.
They've become articulated most clearly and powerfully in England in the 1860s.
Chiefly by Baron Bramwell, who wrote the famous decisions on the live and let live rules associated
with a case called Bamford and Turnley, which was decided around 1860.
So again it's the perfect continuity and shift about the way in which land works.
So the rules have to be exactly the opposite.
You just mentioned that a lot of these property rules are not explicit in the Roman system.
Why is that?
Did the Romans think that private property usage was less important than common or public
property?
I've spent a good deal of time talking about the difference between common and private
property under Roman law, or as they would call it the res commune, that which is open
to all and the res nullius that which is owned by nobody until somebody acquires access to
it.
If you then look past the first page or two which announces this distinction, what you
discover is that virtually all of the attention that the Romans pay is to the private law
side of the issue and it's important to understand that this is not some kind of omission but
rather necessarily follows from the way in which these two systems are organized.
If you're talking about a public space and so forth to which everybody has access, nobody
has to enter into any particular transaction in order to get into that space.
So what generally happens is the system begins and ends by a notion that everybody's entitled
to access to this, that or the other thing, and you're not going to have to buy access,
you can't sell access.
It turns out you can have service contact related to the way in which you run on a river
but those are going to be contractual arrangements, no different from trying to figure how people
work on the land.
So the public law essentially falls into the public space and the modifications that you
see of it's interaction are those which take place when you understand that a simple open
access regime falls far short of what you need to have in order to get the maximal use
out of these public resources and that's why the public trust doctrine and all its variations
start to take place.
By the time you're done with this issue you worry about rights of way.
You worry about exhaustion of common pooled resources and so forth.
You worry about the interface between public and private law.
If in fact you left the Roman riparian system and did modern water law, what you would discover
is the model that they are talking about would not be able to apply to all cases and you'd
start to see different variations on the public law side with water.
You'd have riparian rights, reasonable uses, prior appropriation is the three main kinds
of systems.
I would have to explain the differentiations amongst them.
But that is simply an issue that the Roman's didn't talk about so even though much of Roman
law kind of carriers over how you might ask?
Well when you're trying to figure out what people have by way of access they keep on
talking about usufructuary rights.
Now a usufruct is limited life estate possession on land which we'll talk about presently.
But what happens is when you talk about water you have to find some way to say that people
have the right to be there but that it's not permanent and absolute.
So what they do is they borrow one concept which is perfectly sensible means in private
law and then use it in a public law context and sure enough all of the modern people talk
about water laws as usufructuary rights have forgotten the fact that it was a private law
term which they've never heard about but which is of immense importance when you put that
system together.
Let’s talk about a very basic question.
Who would have had property rights in the Roman Law system?
The question that one has to ask is to whom do property rights extend?
This is a little bit tricky because one has to remember the basic structure of family
law.
In which it turns out that the pater familias basically owns it all.
Even in modern society Mom and Pop start to acquire it but it's widely understood when
you are dealing with acquisitions by legal person that if you're a parent and you owe
fiduciary duties of guardianship to your children, when you acquire property you can't keep it
all for yourself, but you engage in sharing within the family so as to essentially maximize
the position of each individual within that group subject to the correlative rights and
duties of others.
But in terms of dealing with the world it is generally highly inconvenient to have a
situation if daddy or mommy acquires property in which the kids have some kind of an interest
to assume that anybody who wants to deal with the property has to get the minor children
to sign of on the deal along with everybody else.
So there are rights internal to the family that do not bind strangers and this happens
in other places.
So when you sit in a classroom, what I always asked my students is that you're sitting in
this classroom, now the university wants to sell the building and you say you can not
sell this building because I have a right to this seat in this classroom until the end
of the term.
And they all look at me like I'm slightly mad because what they realize intuitively
is what happens is when you say you have a seat in the classroom it means that from one
class to the next if somebody else sits in your seat you can tell them to leave.
So what it is it deals with horizontal relationships amongst students, but nobody thinks that it
binds the university as owner of the building so it can't sell it.
So what we say is you don't have a property interest in the nature of the lease.
What you do have is a contractual interest in the nature of the license and if the license
is terminated it may well be that you have some kind of correlative right sometimes for
damage, but typically in the classroom situation move to another room, you've got a right to
another seat, we sort of forget about it one way or another.
So there's always this kind of two tier system of property.
There's the external facing property where you need very few people to have the rights
and then there's the internal division of property you have large numbers of people
whose rights are temporary and partial in some sense or another and the series is that
anybody who deals with the owner of the property does not have to worry about the situation
of the internal division.
So if you think of a modern situation when somebody wants to sell a house, little Johnny
can't say I don't want mommy and daddy to sell this house because I then can't use the
playroom down stairs.
Sorry Johnny what you have to do is you have to move to the new house and look to your
parents to give you another playroom.
Which essentially they will probably do, so essentially what happens is the legal person
is the one or two people who are entitled to deal with this.
In the Roman system it would be the pater familias in the modern American system it
would be the proprietor with family property it often jointly owned between husband and
wife at which point you have to deal with both but generally speaking they will act
as one in normal relationships so the conflicts don't arise.
And if they do arise, then what you're going to do is have this typical divorce problem
in which you're faced with the following choice.
Do you divide the property in-kind so a husband takes part of it and a wife takes part of
it or do you sell the whole thing off to a third person and divide the cash.
There is an atavistic property where it says, well if I have the property you can't force
me to cash out my interest so Let's have a physical division but it turns out if you
take the modern split level house it's not going to work so well to give dad the upstairs
and mom the downstairs, particularly if dad can't get upstairs because he doesn't have
access to the downstairs, so the modern tendency is to typically sell the asset and then divide
the proceeds, typically money in form so the two parties can go their separate ways.
We do have to know who this proprietor turns out to be and once that question is settled
then the really hard questions turn out to be exactly what can the deal start to look
like?
How do we acquire this property?
Are there any restriction in the way in which this thing can be alienated or divided?
How are these rights to be enforced and so forth.
It turns out you can see the same patterns developing, first in the Roman law then in
the Medieval English law and then in the modern law.
Because the issue of two tier property looking inward and looking outward is not a particular
feature of Roman society versus modern society.
It doesn't depend upon whether or not you have fancy television sets inside the house
or simply have to communicate in words it's a basic fundamental relationship and the reason
why the natural law theories work so well is if you understand how these partitions
are made under the Roman system, it takes relatively little alteration to understand
how they are going to work in modern times.
Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series.
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