• Video

How Did the Romans Define Theft and Nuisance?

Does “theft” always have a hard and fast definition? Professor Richard Epstein explores how the Romans thought about this issue and what it means for us today. The Roman scholar Gaius argued that an action cannot always be a theft just because someone chooses to label it that way. Likewise, Professor Epstein argues that the modern legal system cannot define any activity to be a nuisance just because someone calls it a “nuisance.” https://youtube.com/watch?v=HtrIuq8rkj4


How flexible is our definition of theft? Gaius has this very interesting passage which deals with a kind of philosophical question about realism and nominalism. What he means by that is, are these terms, as Lewis Carroll said in Alice in Wonderland, "so infinitely manipulatable that anything that we call a theft can become a theft, or in modern law, everything that we call a nuisance, can become a nuisance.” It turns out that this is a very high stakes question, because if, in effect, you are allowed to put things into the class of theft as a matter of stipulative definition by way of legislation, then it's a serious threat to the rule of law, because now somebody can say 'we are going to treat as theft, anybody who receives goods from somebody who sells it to him at a price which is below, or above, that which we, as a matter of law, think to be appropriate.’ So all of the sudden, dealing with price control issues becomes criminal type conduct. Gaius is very resistant to this, and so what he says is that it doesn't become theft because you call it theft, and he has this long passage in which he says, "if in fact you do this, you may decide to attach by statute a remedy that is similar to that which we give for theft, but you cannot, by statute, simply declare something to be a theft, if it turns out that it's not going to be a theft." The conditions of language hold, and the definitions that I've given at the beginning really bind. Why is this important today? If you take the word nuisance, you have exactly the same problem. I can define a nuisance not only to be an offensive, non-physical invasion of property, which interferes with somebody's use and enjoyment of his land, through smoke and so forth. You can define anything as a nuisance, like a bug inside a bottle, and so forth. And if you can define nuisances extremely broadly, when it comes to determining the principles of state power, the basic common law intuition and constitutional institution limit - intuition was, to the extent that you're dealing with nuisance-like behaviors, they're wrongs, you could shut down without compensation. If it turns out you're allowed to expand the definition of a nuisance arbitrarily, then it turns out you could shut down anything you don't want. It becomes very easy to say 'we're gonna treat an apartment house in a crowded neighborhood as though it's a nuisance', so we can shut this thing down in one form or another. The nominalism essentially turns out to be fatally inconsistent with the rule of law. It's very instructive that, when you start to look back at the way in which Gaius dealt with this particular subject, that he was very alert to the dangers.

Related Content