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What Was the Roman View of First Possession? Roman Rule v. John Locke

What is required for someone to claim ownership to land? Professor Richard Epstein explores the historical basis for property in Roman Law, which was primarily based on advertised occupation. He then contrasts this idea to John Locke’s theory of ownership which ties property rights to cultivation. https://youtube.com/watch?v=E2de748N5gI


Now, the first thing what you have to do is to understand what the Roman law was and what is sufficient about that. The term that they used was "Occupatio," loosely translated as occupation, and what they meant by that is that the rules of possession required two things. One, that you actually occupied; that is, took over the particular property, and two, you gave notice to the rest of the world in one form or another, so that they knew that you had made this particular claim. So if you start looking at the Roman maxim on this, they're very clear about it. They say, “qui prior est tempore, potior est jure.” And what that means is prior in time is higher in right. ... Why do we like this temporal division? Well because it's very clear so that you're going to reduce the kinds of disputes that are going to take place. And you can now do this not only for the first guy and the second guy, but as in the use tertiary situation, you can say higher in time is prior in right, if in fact you're dealing with a battle between the second and the third party. So what happens is you now develop a system of relative time. And if you do this, then the other guy is going to be perfectly secure against the rest of the world. If you don't do this, then what happens is, if you're dispossessed, you can't recover. …. There was nothing in there which limited the amount of land that you can take as a matter of positive principle to only that amount of land which you could usefully cultivate and so forth. the Roman rule maxim of prior in time is higher in right essentially will favor incumbents, i.e. aboriginal and native peoples, over the newcomers coming in there .. Which now creates a genuine kind of tension. One of the things that was done, for example in John Locke, he gets very obscure on this issue, and it turns out that you acquire possession of an acorn the moment you pick it. You acquire possession of the land the moment you cultivate it, maybe. If you go back and you look at Locke in the fifth chapter of Our Property and The Second Treatise on Government, the word occupatio never occurs in that particular chapter. Which means that he's buloxed the Roman law and the English Common Law, and has done so in a way with a labor theory of value which makes him sound sometimes like a Libertarian and sometimes like an early precursor of Karl Marx. Why does he do that? Because if you require cultivation, and you have a series of Indian tribes who are hunter-gatherers, then their possession doesn't count. So, what you do is you take an ostensible neutral principle of property law, and you turn it into a political tool, which is one of the things that I mentioned happened too. And it turns out that Locke is wrong on the land. You put the word occupatio back in place, meaning it's just a demarcation, and the whole system completely turns over and there is not a slightest hint of Marxism in the Common Law or in the Roman law, and there are all sorts of ways in which you could easily and sensibly read it into John Locke. If a guy doesn't get something right, it turns out if he's that influential, the error will span, at this particular point, three centuries plus.

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