Curiously, the ability of a bunch educated middle class students to acquire rent-free accommodation dates back to the Justinian Code or Roman law. To paraphrase a famous Monty Python sketch; apart from straight roads, aqueducts, town sewerage, hot baths, public health and order, irrigation and wine, what have the Romans ever done for us? Well, how about a coherent body of law that recognized the right of a slave to become not only free but a Roman citizen as well. According to William Rosen, (Justinian’s Flea, 2007, Cape) the most admirable Roman quality was openness. You don’t get more socially mobile than moving from peasant to Emperor and marrying a courtesan which is Justinian’s story.
Behind every great leap forward in just about any discipline there are always shoulders making that leap possible. So, it was with Justinian who was inculcated in the importance of law in Roman history, specifically the 12 Tablets. This body of jurisprudence, written 950 years earlier were themselves based on the Athenian Solon’s reforms from 160 years earlier. However, the shoulders that did the really heavy lifting for Justinian’s Digest belong to Ulpian. He was a jurist whose prodigious output written 225 years earlier, contributed to a third of Justinian’s Digest. As an indicator of Ulpian’s approach, the following epigram is a prime exemplar: “The commandments of the law are these: live honourably, harm nobody and give everyone his due.” Justinian was particularly fond of this aphorism. Liberté and Egalité were the professed ideals of French revolutionaries in the 1790s who may or may not have been aware of how the latter was cited in the Justinian Codex a number of times to eliminate discrimination against women, among others. As interesting as this proto enlightenment expression is, the salient point of the legacy of Roman law was how it influenced the language and concept of property ownership and how it was the midwife of a new profession – the law.
One way to gain the respect of your subjects is to demonstrate your commitment to a process which gives them access to an impartial, legitimately constituted hearing known as assizes. (From the French asseeir: to sit) Henry II’s legal reforms were one of the motors of state formation– as distinct from ‘nation’ forming– along with the need to curb the power of the church and the barons. Justinian’s success in the former task paved the way for the very undemocratic concept of the Divine Right of Kings. Thus, a dialectic between the power of the king and the barons, initiated by William the Conqueror’s Doomsday Book– the first use of big data to bolster power of the monarch– and continued with Magna Carta in 1215 which limited that power, became the grist to democracy’s mill. These powerplays were the tectonic shifts which coincidentally benefitted peasants.
For raising taxes and armies to quell rebellious barons or invade foreign territories, political skills, military acumen and muscular determination in the monarch are all that’s required. Drafting laws, on the other hand, depend upon an altogether more intellectually demanding skill set. And when the language you’re using is Latin, declining nouns amplify the syntactical matrix of ambiguities that accreted over the years. Also, when you’re compiling a Codex of 800,000 words in 3 years, you’re going to want something more than straight remuneration such as an enhanced status for your profession. To that end they attempted to “…turn law into a quasi-liturgical language so that it becomes a separate institution above the king.” (Rosen, p.126) Similarly, the authors of what is known as the Bracton treatise, written some time before 1236, were also keen to assert their professional identity in a new specialized field as ‘priests of justice’. (McSweeney, 2012, p.1171) To compound the linguistic complexity that Tribonian, Justinian’s chief commissioner, wrestled with, the jurists of the medieval Angevin empire had the additional problem of not only reconciling the semantic anomalies between French and English, but also failing to understand Latin colloquialisms.
A key area of concern for the justiciars in early 13th century was the problem of property ownership. Essentially, the concept had no legal basis until 1490. (Mc Sweeney 2012) Unpicking the concept of property before 1490 requires much patience and a willingness to admit defeat amongst the circularity of syntactical reasoning between Roman law and Anglo-Norman custom. Nevertheless, it is instructive to understand the clash of cultures when dealing with a person’s relation to the land. The Romans were all about action – how you profited from the land– and for how long whereas the Normans cared more about who you were. Lineage and heritability were established norms of the French vernacular re property. (McSweeney p. 1148) A norm (pun unintended) William the Conqueror was quick to establish with the start of a lineage by insisting that, on the death of a Saxon thegn– a man who held land granted by the king– an entire estate would pass to a single heir of the new Norman nobility. (Sharma, 2000, p.108)
In Roman law the concept of property entailed how something is used, what can be profitably extracted from it and the right to sell it. In Latin those three distinctions are called usus, fructus and abusus. The combination those three qualities amounted to, was an absolute right ‘good against the world’. For the Anglo Norman justiciars of the early 13th century there was no such thing, only a comparatively better right than someone else. Analyzing the authors’ interpretation of Roman law resembles a cat’s cradle of the interconnecting terms of (Roman) possession and property with French seisin and right. What is important for our purposes is the emphasis the Bracton authors put on Roman prescription and usucapion which both relate to the acquisition of a title to a property by uninterrupted possession for a set term. It is this Roman idea about uninterrupted maintenance or use of land that lies behind the doctrine of Adverse Possession.
When your belief system and the economy of your tribe is inextricably linked to the land, concepts of individual ownership, possession and property will be completely alien. McSweeney points this out in relation to indigenous people from British Columbia when he cites Encountering the Spirit of the Land: “Property” in a Kinship-Based Legal Order. by Richard Overstall which implies the redundancy of the term in inverted commas. (p.1198 ) His point emphasizes how the assumption of neutrality of language in regard to relations with things is erroneous. Adverse Possession would have been far less troubling to Aboriginal Nations than rights to title and alienation (right to sell land). Whereas legal scholars of the English system have found it hard to recognize the validity of someone ‘getting something for nothing’. However, Henry Ballantine, in a paper– Title by Adverse Possession– in the Harvard Law Review in 1918, might have had sympathy with Aboriginal approach to land as he points out that all titles date back to “…that mailed marauder, that royal robber, that great adverse possessor, – William the Conqueror.” By 2001 even evolutionary biology had been corralled into shoring up the legitimacy of adverse possession. In a paper by Jeffrey Stake (Georgetown Law journal Vol. 89:2419) evidence from studying neuronal synapses in monkeys firing when food is grabbed in a certain way suggest that “…humans may share a common understanding of the level of physical control sufficient to make a person an owner.’’ So, there you have it– “Humans without the property-recognition gene had their genes eliminated from the gene pool.” (Stake,2001) Whether Richard Overstall would agree with that evolutionary interpretation is an open question.
At some stage after moving in the act of squatting as a legitimate form of tenure was justified in conversations referencing either the Statute of Merton in 1235 or the Statute of Westminster in 1275 which first identified Adverse Possession as a legal principle. A conversation that would have been quickly terminated by a remark such as, “I don’t care whose statue you’re talking about! Leave this property immediately!” Essentially these statutes were the first of many encroachments on the opportunity for peasants to earn a living from the land. They marked the beginning of the history of enclosures or to use a more contemporary term–privatization of the commons. Both those statutes and the notion of being regarded as a legal possessor of land or a property without a title has a history rooted in peasants’ relations with land from the Norman Conquest onwards. It was the peasant or villain who enjoyed “…usufructory rights to graze stock, grow crops, cut wood or peat or draw water on various plots of land at specified times of year.” (The Land, issue 7, Fairlie, 2009) Perversely, due to those usufructuary rights enjoyed by peasants in feudal England they had more opportunities to make a living from the land when it was all owned by the monarch than later when ‘free alienation’ (the right to buy and sell land.) emerged. So, when the cops started battering on the door demanding eviction, we were supposed to claim our rights by citing an obscure 700-year-old statute.