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Published online by Cambridge University Press: 16 January 2009
“The problem of ownership remains but it is not a legal problem; it is the concern of … any and every specialist who can contribute his grain to the common heap … The lawyer naturally has his contribution to make, but as the problem is not fundamentally a legal problem the final solution does not lie with him. He is concerned with ownership only so far as it produces consequences within the sphere of his own special technique.” This article is written to suggest that ownership as a topic of jurisprudence is best regarded not as an isolated concept but as a jurisprudential contribution to the wider problem of the use of things; and that it is an appropriate subject for general jurisprudence since it raises questions which are faced by all legal systems that preserve the notion of private property.
1 Professor Hargreaves (1956) 19 M.L.R. 17.
2 Austin, Jurisprudence, 5th ed., Vol. II, “On the Study of Jurisprudence,” p. 1073.Google Scholar
3 Lecture XLVII, p. 789.
4 Lecture XLVIII, Vol. II, p. 793.
5 p. 794.
6 This Austin does in Lecture LI.
7 Lecture XLVIII, p. 795, L, pp. 823–824, LII, p. 851.
8 XLVIII, p. 799.
9 7 C.L.J. 215.
10 See e.g.. Vol. I, p. 53 on Savigny's Recht des Besitzes, p. 72 on Tnibaut's System des Pandekten-Reehts; though he is not uncritical of e.g., Savigny's proposals for codification Vol. II, p. 669 and Thibaut's discussion of status. p. 707. See also the note by Sarah Austin at p. 1038. As to his attitude to Roman law see e.g., p. 1080.
11 XL VIII, p. 796.
12 Ibid., p. 797.
13 Ibid., p. 799.
14 See below.
15 pp. 1072–1074.
16 11 C.L.J. 234–235.
17 Hohfeld, Fundamental Legal Conceptions, pp. 198–200, and see Professor Hart's criticism, (1954) 70 L.Q.R. 54–55.
18 Dias and Hughes, Jurisprudence, p. 339. An extremely cautious proposition.
19 Ibid., p. 7.
20 Ibid., p. 336. One ought perhaps to take issue with Mr. Dias over the deceptive simplicity of this way of describing the Roman treatment of dominium since to a great extent the Roman lawyers did not “elaborate” dominium but talked of it aa something given. The texts on dominium, for example in D.41.1, deal primarily with the ways in which dominium is acquired as its title “de adquirendo rerum dominio” would lead one to expect (the same is true to a great extent of the texts dealing with possession). Only in a very wide sense of dominium can Roman lawyers be said to have been elaborating dominium when they were in fact developing such analogous institutions aa usufruct or emphyteusis—a sense to be found in the West Roman Vulgar Law (Levy, West Roman Vulgar Law, Law of Property, p. 67) but not in the law of classical Rome—or do the authors intend to refer to a gradual differentiation of powers exercised by the early head of the household into such elements as dominium and patria potestas? It seems unlikely. Professor Rheinstein in his edition of Weber's Law and Economy in Society uses almost the same phrase: p. 221, n. 77. (On the same page Weber gives a warning which is complementary to that of Professor Campbell cited above, n. 9, “the abstract character of many legal concepts which today are regarded as being particularly Roman in their origin is not to be found originally in Antiquity. The much discussed Roman concept of dominium, for example, is a product of the denationalisation of Roman law and its transformation into world law”—complementary to Professor Campbell since especially in the sphere of ownership and possession classical Roman law concepts have been blown up into jurisprudential concepts while retaining their classical Roman names before the attempt has been made to fit the phenomena of modern legal systems into them.) A footnote is no place to go further. The point that one ought to make is that if talk of the elaboration of dominium is to be justified discussion may range from the origin of the Indo-European Peoples as in Noyes, Institution of Property, to nineteenth-century Pandectist literature paving the way for a German Civil Code.
21 Ibid., pp. 342, 344.
22 p. 341. Even if this is true it would seem as much due to the absence of a legal system, law, and books on jurisprudence, as on the absence of a possible defendant as the authors' statement seems to imply.
24 Salmond, , Jurisprudence, 11th ed. by Dr. Glanville, Williams, p. 300.Google Scholar
25 American Restatement, Property, Introdn., p. 11.
26 Salmond, p. 302.
27 Article 544, Code Civil.
28 Vinding Kruse, Right of Property, p. 7.
29 German Civil Code, § 903. “Der Eigentümer einer Sache kann, so weit nicht das Gesetz oder Rechte dritter entgegenstehen, mit der Sache nach Belieben verfahren, und andere von jeder Einwirkung ausschliessen.”
30 19 Canadian Bar Review, p. 343.
30a Since writing, I find Professor Lawson raises the same question in 32 N.Y. Law Review, p. 912.
31 How much of what follows is derived from Vinding Kruse's Right of Property I can no longer tell. The stimulation is undeniable.
32 Vinding Kruse, p. 220.
32a Cf. Markby, Elements of Law, 6th ed., 1905, p. 158.Google Scholar “I do not think it is possible to explain what is meant by ownership excppt by starting with this abstract conception of it. It is to this that we always revert when we are trying to form a conception of ownership.”
33 Salmond, Chaps. 12 and 20. Contrast Lawson, Rational Strength of English Law, pp. 75 et seq.
34 In much the same way as, taking group conduct as one's point of reference instead of taking corporate personality as the starting point, one might emphasise the importance of the establishment in the English legal system of the nineteenth century of a straightforward method of acquiring the privileges of incorporation, and later, of limited liability. Cf. Cooke, Corporation Trust and Company, p. 7.
35 Flexibility here refers to the techniques available rather than to the use to which they were put, just as productive use is regarded primarily from the point of view of the owner for the time being, rather than of either his successors or the community. Thus, many of the varied legal techniques which one might cite as examples of the flexibility of the English law of real property were in fact developed by astute conveyancers to make it possible for aristocratic patriarchs to tie land down rather than to make it more readilv available as a productive asset.
35a Cf. Vera Bolgàr, “Why no Trusts in the Civil Law?” 2 Am.J. Comparative Law, p. 204.
36 Cf. Vinding Kruse, pp. 112 el seq.
37 Cf. Vinding Kruse, pp. 121–123, Lawson, 32 N.Y. Law Review, p. 918, and Markby, op. cit., p. 161. “In the view of some jurists … it is wrong to speak of ownership of anything which is not a material object … It seems to me a strange thing to speak of a thing as erroneous which is universally done and especially when after all the question is only one of convenience—how shall we shape the conception of ownership?”
