This chapter addresses developments in Late Antiquity, which witnessed a partial shift to more land-based conceptions of both ownership and rulership. The prior literature has pointed to two explanatory factors: the decline of classical polis culture amidst the deurbanization of Late Antiquity, and the rise of Christianity. The chapter draws together the threads of this literature, in order to develop an account of late antique cultural change. Classical Roman property law, it argues, had its context in classical cities. The relative decay of urban dominance and the rise of Christianity tended to undermine the classical foundations of the law of both ownership and rulership. The Empire was reconceived in more territorial terms, while classical conceptions of elite power faltered. The resulting shifts did not result in any decisive and thoroughgoing transformation of the understanding of ownership and rulership, but they set the stage for later developments of great significance.

This chapter discusses archaic Roman property law, whose symbolism and terminology show a striking orientation toward the ownership of living creatures, human and animal. That symbolism and terminology was seized upon by many of the leading thinkers of the past, who believed it offered clues to the origins of human society. It was also seized upon by both Communist and Fascist ideologues. Today, by contrast, its significance is generally dismissed. Modern scholarship has been heavily dedicated to reconstructing the socio-economic realities; scholars often deploy their learning to dispel the “myths” in the sources, among them the myths in the archaic Roman sources. Yet the myths matter; “idioms of power” cannot simply be written off. The chapter brings the anthropology of property law to bear on the interpretation of these mysterious sources, and describes the long intellectual and political history of their interpretation and ideological use.

This chapter discusses the formation of high classical Roman property law, which displays what Orlando Patterson calls a master/slave “idiom of power.” It focuses on the emergence of the term dominus, “master,” as the ordinary word for “owner.” The rise of the dominus was once the topic of extensive analysis and controversy, and it figured prominently in the ideologies of Communism and Fascism. It has, however, been forgotten by contemporary scholars. The chapter sets out to revive this forgotten topic. Drawing on Roman social history, the chapter argues that the appearance of the new terminology of the dominus in classical law can be linked to important social changes in the nature of Roman elite power. The chapter closes by arguing that Roman property law bore a kinship to classical Greco-Roman religion, which was marked by the “symbolism and ideology of the paradigmatic hunter.”

This chapter addresses the nature of Roman imperial rule. Roman historians have often argued that rulership in the Roman Empire was modeled on the household powers of the Roman paterfamilias. In particular, as Myles Lavan and other recent scholars have suggested, Roman rule made heavy use of the ideology of the master/slave relationship; the idiom of power of Roman rulership, on this account, turned on the rhetoric of enslaving the peoples of the world. The chapter surveys these interpretations, with the purpose of highlighting the conceptual connections between Roman ownership and Roman rulership. Just as the modern territorial state is conceptualized in ways that are in close harmony with the modern private ownership of land, the classical Roman understanding of rule was in harmony with the Roman understanding of household domination.

This chapter challenges the idea that the classical Roman jurists were “pioneers of human rights.” The jurists had no doubts about the legitimacy of the hunt for human prey in war. Quite the contrary: they thought of the capture and enslavement of enemies as a paradigm of just acquisition. It is crucial that we come to terms with this ancient belief system: We must recognize that the classical jurists did not see any need for justification for slavery beyond the fact of victory in battle or in the sack of cities. The use of theories like Aristotelean natural slavery or the teaching that slavery arose out of the consent of the victim date only to the early modern period. The chapter closes by discussing how the jurists used the model of the hunt for human and animal prey as the basis for analogical reasoning.

By the end of the eighteenth century the plural language of liberty was under widespread attack, denounced by radicals as a denial of innate human rights and a tool of monarchical despotism. This evolution was partly powered by the consolidation of nation-states that picked up speed in the sixteenth century, but this centralization was long incomplete. In this situation the terms “liberties” and “privileges” were almost universally regarded as equivalents, even by so radical a movement as the English Levellers of the seventeenth century. The dissolution of this equivalence took place in France, first as the monarchy’s political and fiscal shenanigans sapped people’s faith in the system, and then as the Revolution mounted a full-scale attack on privilege as a source of inequality and despotism. Supporters of the Revolution followed its lead, but the old language still played a role in Britain and Germany, a reminder that the old language, even with its equivalence of liberties and privileges, long persisted in fostering self-government and resisting oppression.

The Introduction gives a brief account of Bartolus’s life, explains the world of medieval law in which he worked, and then explains the political context of the northern and central Italian city republics for which he worked, and whose problems he sought to analyse. It explains that tyranny was Bartolus’s main preoccupation, even in the two treatises ostensibly concerned with other questions. It then presents the main arguments of his three political treatises and Bartolus’s main political theory in his academic legal commentaries, and describes the later influence of these treatises in European political theory. The Introduction also argues that Bartolus conceived of these three treatises as one composite treatment of tyranny.

This chapter discusses an oft-cited source of the All-Affected Principle in a procedural maxim of Roman private law known by the tag quod omnes tangit (‘what touches all’), a maxim that became a more expansive principle of medieval canon and civil law. By exploring some of the maxim’s original contexts and formulations, the chapter draws out several important lessons for the All-Affected Principle itself: the interplay between procedural and substantive claims; the empowerment of some to advance such claims on behalf of others; and the need for procedural closure. It then explores the possible application of this approach in the context of how climate change touches all and how claims might be made on the basis of the All-Affected Principle accordingly. Identification of moral rights to a fair per capita share of a global carbon budget, and rights against the unjust imposition of harm or the risk of harm, are both considered as potential sources of such claims. A range of possible institutional arrangements to advance and realize such claims, such as trusteeship, are briefly considered in conclusion.

Chapter 4 is the first of three chapters laying a basic foundation in German law and politics. The chapter focuses on German legal history, including a deep history dating from the Roman encounters with the German barbarians up to the codification movement in the nineteenth century. The deep history shows how Germanic customary law, Roman Law, and Canon Law mixed to form modern German law. The chapter then shows how the process of development proceeded differently for private law (leading to the great codification of private law) and public law (with a tumultuous process of constitutionalization).

Chapter 2 presents the Civil Law tradition, which has been a predominant influence in the German legal culture. Grosswald Curran’s excerpt juxtaposes the Civil Law’s enlightenment characteristics with the Common Law’s romantic characteristics. The systematic, coherent, codified qualities of the Civil Law fuel the ambition for a scientifically objective legal framework. This, in turn, leads to a smaller role for judges and a larger role for legal scholars.

This chapter explains that the reasonable person was not the first anthropomorphised legal standard. The idea of model characters can be traced back to the oldest documents of humanity. The chapter introduces three of these ancient ancestors of the reasonable person: the silent person of Egypt (geru maa), the earnest person of Greece (ho spoudaios), and the male head of a family in ancient Rome (paterfamilias). There are many other ancestors of the reasonable person, and at least implicit anthropomorphised standards of behaviour could probably be found in any society at any time. The three concepts here are presented only as examples, and because they form part of one Mediterranean context in which the ancient Egyptians probably influenced the ancient Greeks, who in turn influenced the Romans, whose influence on contemporary European law and on the systems derived from it can still be felt. Each of the three figures introduced in this chapter deserves its own biography and the analysis offered here remains fragmented. Nonetheless, the selected aspects of the lives of the geru maa, of the spoudaios, and of paterfamilias foreshadow many of the questions, tensions, and challenges with which the common law’s reasonable person still struggles today.

This chapter develops along three lines. First, following a historical approach, it describes the birth and development of the civil law tradition – from the rediscovery of Roman law in the High Middle Ages to the enactment of the German Civil Code. The second part presents two cases where the civil law model has been transplanted outside of Europe: Latin America and Japan. The final part offers a critical outlook on what the civil law tradition means today.

Roman law persists after the fall of Rome, not only governing private/business-relations, but also as the basis for the Western European legal order. When it comes down to the law the Roman Empire lived on as a virtual empire (of the imagination) more than a millennium after the actual fall of the physical empire in the West. Roman law was studied, codified and used as if the Empire was still there.

The Chinese Civil Code, approved on 28 May 2021, is an important code for several reasons: it is a synthesis of the Roman legal system, a privileged place collecting institutions and dogmatic systems through categories, institutes and principles that provides a careful and balanced synthesis of the matter it regulates. Besides the well-known and peculiar concepts of the civil law system encompassed by the Chinese Civil Code, socialism with Chinese characteristics and custom as source of law in the absence of statutory provisions set the Code between past and future with its own identity and the ability to adapt to the continuous and future changes of the surrounding reality. The only certainty in this continuous evolution of the surrounding reality, is that the Code belongs and is open to the system in a process of continuous and mutual enhancement and complementarity. The typical and distinctive patterns of Roman tradition are endorsed and combined with Chinese legal tradition for their interpretative value, both individually and in the context of the Code as a whole, to give certainty and solidity to a regulatory system meant to last over time.

The first chapter examines the reasons that the led nineteenth-century liberal jurists who sought to modernize property to turn to Roman antiquity for inspiration. In Roman law, jurists found a powerful idea of legal scientific method, a professional role model, a large inventory of ostensibly apolitical doctrines produced by jurists of a distant and revered age.

The Introduction lays out the context, the motives, and the main features of the reinvention of Roman property in nineteenth-century Europe. It introduces the global professional network of elite liberal jurists who embarked in this ambitious project and explores the reasons of their attraction to Roman propert and their committment to changing ideas of modernization. Further the introduction examines the conceptual structre of modern dominium.