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36 U. Mo. Kan. City L. Rev. 274 (1968)
Res Nullius and Occupation in Roman and International Law

handle is hein.journals/umkc36 and id is 280 raw text is: Res Nullius and Occupation in Roman and International Law F. S. RUDDY* Res Nullius is literally property of no one, and as such implies a concept of property and ownership. The term is a Roman law concept, and hence the starting point in tracing res nullius is the Roman concept of property. The genesis of Roman property concepts is by no means clear. Seneca argued to a primordal state of nature where property rights were non- existent because unnecessary. It was only with the falling away of the natural state through the increase in human vice and avarice that prop- erty rights were fashioned.' In his selfishness to possess the things of the world exclusively, man drew increasingly away from the state of nature and fictionalized a social organization which recognized human avarice, in the form of individual ownership, and protected it. This view is more or less consistent with Savigny's aphorism that property is founded on adverse possession ripened by prescription.'2 In recent times the origin of Roman private property rights has be- come more a question of the chicken or the egg. For example, the eminent Pandectist Mommsen held that Roman private property derived from land originally held in common,' while Fustel de Coulanges on the other hand viewed private property rights as originating in the family and radiating thence.4 Justinian in speaking of modes of acquiring property, treats the titles of natural law as first because they are the older law, having been instituted by nature at the first origin of mankind, whereas civil laws first came into existence when states began to be founded, magistrates to be created, and laws to be written.5 In a panoramic sense Justinian is right, but in the legal sense, i.e., as we use the term law today, the process is otherwise. As Professor Jolowicz observed: No doubt grab- bing (occupation) came before mancipation, but in another sense it is * Professor, Selwyn College, Cambridge University, Cambridge, England. R. W. & A. J. CARLYLE, A HISTORY OF MEDIEVAL POLITICAL THOUGHT IN THE WEST Cp. 2 (1963). 2 Quoted in H. S. MAINE, THE ANCIENT LAW notes to Cp. viii (1912). 3 Quoted in Fustel de Coulanges, Religious Bases of Property, in PRIMITIVE AND ANCIENT LEGAL INSTITUTIONS 105 (A. KOCOUREK & J. WIGMORE eds. 1915). 4 Id. at 100. 5 INSTITUTES OF JUSTINIAN bk. II, tit. I at 11 (J. B. MOYLE transl. 1955). 274

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