Often Thinking about—and Researching—Roman Law
Professor Anna di Robilant’s eight years of research reveals how jurists positioned Roman law as the ideal model for modernizing property law.
Often Thinking about—and Researching—Roman Law
Professor Anna di Robilant’s eight years of research reveals how jurists positioned Roman law as the ideal model for modernizing property law.
How often do you think about the Roman Empire?
For Professor Anna di Robilant, it’s been a daily pastime over the past eight years. Her new book, The Making of Modern Property: Reinventing Roman Law in Europe and its Peripheries 1789–1950 (University of Cambridge Press 2023), explores the history of how from the 18th century through the 20th century, generations of academic jurists and law professors crafted a new idea of property to support the process of modernizing countries including Germany, France, and Italy, as well as those in colonial peripheries, such as Latin America.
As these countries were progressing to liberalist and capitalist economies, they needed to reexamine how to approach property law while balancing two elements: the individual’s rights to control a resource and the liberalist’s values of protecting the whole community. Jurists sought to package their ideas from a neutral and idealized past.
The Record spoke with Professor di Robilant about her extensive research and translations, which trace the efforts of a wide network of global jurists who redefined property law.
Listen to an unabridged version of the interview:
Q&A
The Record: What sparked your interest in this topic?
The idea that property is a legal concept that gives the owner a robust entitlement to control the use of some valuable resources is an idea I refer to as Romanist bourgeois property.
However, this idea that the jurists produced is so pervasive and so deeply embedded in our idea of property law that it actually does limit our legal imagination, preventing us from thinking about any alternative form of governing resources. For example, one that promotes broader democratic values by involving multiple stakeholders, with differentiated entitlements designed to secure the equitable, sustainable, and efficient management of a specific resource.
I became intrigued by the origins of such a pervasive idea: who were the jurists who crafted this and what motivated them? What were their intellectual and political commitments? How do they understand the relationship between this concept of property and the changing permutations of capitalists—from pre-capitalist to full-blown, industrial capitalist economy? What do they want to achieve by presenting this ideal property as rooted in Roman law? Were there regional differences? Was this idea reshaped or expanded somewhere? These are some of the many curiosities that intrigued me.
The Record: Can you please explain what are the similarities and the differences between Roman property law and modern property law?
While modern property and Roman property may seem superficially similar, the reality is that the actual operation of Roman property remains largely opaque to us today. These concepts were shaped by a cultural and philosophical context that was very different than ours, and that we understand only in part.
In Roman society, [the conception of property] varied over time. For example, the idea that property was absolute was fictional. Roman property was highly ritualistic. For example, there was an elaborate ritual to mark the boundaries of a parcel of land, signifying that within those boundaries, the powers of the owner are absolute. In practice, however, there were all sorts of doctrines that limited this right. Just like today, property cannot be absolute. And at first, there were complex rituals, rich in symbolism, to transfer property from an owner to a buyer. But in practice, there were ways to bypass these rituals through fiction.
Many of the legal doctrines of Roman property were largely based on precepts and concepts of stoic philosophy. For example, we can’t fully understand a distinction between things that can be owned in private property and things that cannot be owned, either because they’re of the public interest, or because of religious reasons. The boundary between public and religious is also difficult to grasp and complicated and opaque.
The most important thing Roman law had to offer jurists of the 19th century was a very appealing professional role model, who aspired to play an active role as scientists and modernizers.
The Record: How did the Roman concept of property support European jurists’ process of modernization?
This concept of robust property rights, with some limits in the interest of neighbors and the public, spoke to the values of liberal individualism and liberal modernity that were taking root around the globe during the 19th century. Rhetorically, modernist Romanist bourgeois property did prove a very powerful tool.
Regional customary property rules, such as ancient Germanic law or the French regional customary law was inextricably involved with feudalism and tainted by its association with feudal property relations, and fundamentally at odds with the values of modern liberal individualism that were gaining ground. The overall framework of the property system had to be different, and not stained with the stigma of feudalism. Anchoring modern property in this largely fabricated idea of Roman law property was their solution and it was an appealing option for many reasons.
First of all, Roman law provided a wide repertory of rules and doctrines that could be repurposed. This came from a distant and glorious time, from Roman antiquity, and hence could be presented as unaffected by present power struggles—as a purely technical, purely neutral record to our possible property forms.
Roman law was also so attractive because between the end of the 18th century and the first half of the 19th century, all things Roman and Roman antiquity were immensely popular and pervasive among the educated elites in politics, the arts, and literature. The Roman Republic was touted as a model of republican virtue.
The most important thing Roman law had to offer jurists of the 19th century was a very appealing professional role model, who aspired to play an active role as scientists and modernizers. And Roman jurists were a powerful and immensely prestigious professional class with a unique and critical skill: a scientific understanding of law.
Although Romanist bourgeois property law had very little that was authentically Roman. It was a reinvented Roman law.
The Record: When you were researching, was there anything that surprised you?
Tracing personal contacts and relationships between jurists in different countries. Seeing firsthand the emergence of a network of jurists that extended from France to Egypt, Lebanon to Chile, to Mexico. Jurists who saw themselves as sharing a common property reform agenda and a similar methodology.
One of my favorite stories that I didn’t know is the trajectory of Francesco Costantini, an Italian jurist, a native of my hometown, Torino. In Italy, he was a relatively marginal figure in the movement that was advocating for a socialist private law. He traveled extensively through Europe, Latin America, Cuba, and then he ended up in Mexico. In all his traveling, he established robust relations. And when he finally settled in Mexico in the late 1920s, he became very close to a highly influential circle of jurists who were drafting the Mexican Civil Code and played an indirect role in the drafting process.
While not a surprise, I was able to confirm an intuition that got me interested in the intellectual history of property law: that the real legacy of the Romanist bourgeois property culture is the reminder that advocates’ focus needs to be not on any abstract theory of property, but on how to govern social relations about specific resources. Whether it’s housing, IP, commercial, real estate, water, etc.… How broad should the entitlements of the owner be? Who should have access to the resource? Who should have a right to participate in the governance of the resource? How significant should the regulatory limits be? This is a very difficult, normative assessment with complex tradeoffs that can only happen in the concrete context of a specific resource.
The important and lasting lesson is not that property is robust, is not that property is social, but is that the meaning of property is a very contextual and resource-specific one.
