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1985 Acta Juridica 1 (1985)
The Roman Law Concept of Dominium and the Idea of Absolute Ownership

handle is hein.journals/actj1985 and id is 13 raw text is: THE ROMAN LAW CONCEPT OF DOMINIUM AND THE IDEA OF ABSOLUTE OWNERSHIP The 'absolute' quality of Roman ownership is considered here from two standpoints. The paper looks first at the content of ownership and then at the concept. In relation to the content, the word 'absolute' suggests that the Roman owner was free from restrictions in relation to the things which he owned, that he could do as he pleased. It also carried another overtone. It implies not only that observably his use was unrestricted but also that it was in some sense incapable of restriction. It should, however, be immediately obvious that no community could tolerate ownership literally unrestricted in its content. To take an extreme example, even a society which did not go to the length of forbidding citizens to own firearms could not allow owners to use their guns just as they please: a man could not conceivably justify shooting another by saying that he was merely using his own weapon. Since ownership literally absolute in content is therefore impossible, a convenient form of inquiry is to ask in what principal ways the content of Roman ownership was in fact restricted and then to see whether those restrictions express a regular attitude to the degree of restriction which was permissible. It can be said at the outset that the word 'permissible' in relation to this last part of the inquiry can refer only to socio-political morality, since no rule of positive law controlled the measure of legislative interference. There was, after all, no written constitution to support a guarantee of private autonomy.1 'Absolute' is not, properly speaking, a word which admits of degrees. Hence if Roman ownership was at all restricted in its content, as indeed it must have been and was, it was not, strictly, absolute. However, if a looser usage is admitted, a last question to be asked is whether, if some measure can be said to have been set to the extent of permissible interference with an owner's freedoms, the remaining area of inviolability was so great as to attract the word 'absolute' as a useful description of the quality of Roman ownership. As applied to the concept as opposed to the content of ownership, 'absolute' sums up qualities which are only revealed by logical analysis. It suggests, first, that the idea of ownership was clearly disengaged in the Roman legal mind from other superiorities, as for instance sovereignty, jurisdiction and patriarchal authority; secondly, that, within the field thus marked out for it on the map of the law, ownership had a unity, or perhaps more accurately a monopoly, in that it neither had any competitors nor could itself be divided into slices of time; and, thirdly, that the relationship between an owner, or co-owners, and the thing owned was conceived as excluding all other people from all possibility of asserting a similar relationship to the same thing. These analytical absolutes are comparatively more difficult to grasp than the idea of absoluteness in relation to the content of ownership. At this stage they are presented only as implications of the word which is in issue. The question whether they are literal truths about Roman ownership will be examined below. The answer depends to some extent on whether praetorian law is excluded from consideration. Once praetorian and civil law are taken together, the truth of the last two of the three propositions certainly has to be qualified. Prior to the two main sections on the content and concept of ownership, there is a preliminary section in which three points are made which are of general

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