A Curious Miscellany of Items Philosophical, Historical, and Literary

Manus haec inimica tyrannis.

Wednesday, April 22, 2009

When Lawyers Become Metaphysicians

If I had it to do all over again, I probably would have gone to law school rather than study for a PhD in philosophy. For one thing, I’d be wealthier. For another, there would be ample scope left for philosophizing. My dabblings in the law have taught me that there are certain problems in law which are properly philosophical rather than legal. Some of my favourite examples come not from the modern law, but from Roman law.

The Law of Occupatio

The Roman jurists seem to have spent a fair amount of time arguing about something that a philosopher would instantly recognize as the problem of identity. The problem has its origins in the law surrounding the acquisition of property.

For the Romans, as it is with us, there was more than one way to acquire property, but broadly these were divisible into two “modes”, the civil mode and the natural mode. The former dealt with property acquisition in accordance with the laws enacted by the Roman people, which were peculiar to them. The natural mode comprised those ways of acquiring property that seemed to be shared by all peoples besides the Romans. For example, if I am walking through a wilderness, and I pick up a bunch of acorns lying on the ground, I now own those acorns which were previously unowned. This mode was intelligible whether you were a Roman, a Greek, or a Jew. The Romans themselves referred to this mode of property acquisition as occupatio: the appropriation of something previously unowned (res nullius).

Occupatio was relatively unproblematic for the Roman jurists, with the exception of the case of wild animals. With land, possession of unowned land was co-extensive with ownership of it. But with wild animals, ownership only lasted as long as possession; if the animal escaped, you no longer had property in it. This includes wild animals which have been “tamed”, because the Romans thought of wildness as not a characteristic of individual animals, but of the kind to which it belongs. Exceptions were later made for certain animals (e.g. pigeons) that were in the habit of leaving and returning.

Here the English common law differs, for the common law owner of land has a property right in the game on it: if I shoot a bird on your land, the bird is yours, even though I have possession of the bird and you technically don’t.

The Law of Accessio

Things got a little more complicated with things that were a mixture or merger of materials owned by separate persons. Sometimes, the merged materials would pass into the ownership of one owner, to the prejudice of the other. This would be based on the notion that one of the materials is more important in some sense than the other. Examples of this often had to do with land. For example, if I planted seeds on your land, provided they took root, the seeds — and the resulting crops — would belong to you. Similarly if I built a house with my materials on your land. Your ownership of land would in effect give you title to the crop or the house. This mode of acquisition the Roman jurists called accessio. The idea was that some materials are accessory to others, and acceded to them. It seemed that most materials were held to be mere accessories to land. There is no thorough explanation of what exactly makes one material accessory to another, and the rules the jurists developed seem to have been varied and complicated.

What about moveables other than land? The rules here could get pretty complicated. If I make wine with your grapes, and assuming the absence of bad faith or fraud, or of a contract stipulating ownership, who owns the wine? Or who owns a goblet that you make out of my gold? For the Romans, the question turned around whether or not the resulting object (i.e. the wine or the goblet) was to be considered a new thing. The general rule was that if the process leading to the creation of an object could be reversed, and the original materials reconstituted, then the created object was not new and therefore was owned by whoever owned the materials making it up. No new species had been created. So a goblet belonged to the owner of the gold it was made from; because the goblet could be melted down and the gold given back to its owner, the goblet was not a new species. On the other hand, wine was considered new, and belonged to its maker, because wine could not be converted back into grapes.

The Law of Specificatio

In cases like wine, a new object was considered to have been created. Certain implications flowed from this. The idea was that if an object is new, then it is technically unowned, because it is no longer identified with the materials of which it consisted. As such, an unowned object, effectively a res nullius, could be acquired by whoever first took possession of it, just as in occupatio, above. In most cases this acquirer would be the maker of the thing, as he would usually be in the best position to do so. Such appropriation of a newly-created thing was a mode of acquisition which the jurists called specificatio.

For a couple of centuries there were two “schools” of Roman jurists, the Sabinians and the Proculians, presumably named for their first-century AD founders, Sabinus and Proculus. Nobody has yet explained exactly what were the principled theoretical differences between the two schools, but they differed on many specific issues. In particular they seem to have differed on the issue of specificatio.

The Sabinians held that the creator of the new object had right of acquisition by virtue of the very act of creation (thus, by creatio). This is somewhat reminiscent of John Locke’s view of original acquisition as espoused in his Second Treatise of Government (1690), where one acquires unowned property by “mixing one’s labour” with it. The Sabinian jurists did not put it in quite those terms, but the main point is that there was no gap between creatio and occupatio.

Predictably, the Proculians disagreed, holding that creatio and occupatio were different acts. Now, as a matter of fact, the creator would usually be in the best position to take possession (and thereby ownership), but this need not be the case. For example, I could stomp your grapes and leave the juice to ferment, and you could slip in and repossess the juice after it had been converted into wine. Here much would depend on at what exact point the material in question ceased to be what it was and became something else. Was it after the grapes had been stomped? Or at some point along in the fermenting process? Or not until it had been decanted?

Notice though that these kinds of questions would arise for Sabinians too, for even without a gap between creation and ownership, one still had to determine when creation actually occurred. Obviously, there was much room here for juristic discussion.

Of Books and Paintings

Not all the cases discussed in the texts of the jurists fall neatly into the scheme of occupatio, accessio, and specificatio. In his Institutes, the jurist Gaius (2nd century AD) mentions two contrasting cases. He held that “what someone has written on my paper or parchment is mine even if it is in letters of gold, because the letters become part of the parchment” (II.77). So the writing accedes to the parchment, a seemingly clear case of accessio. But in the next section he writes that “if someone has painted something on my board, such as a portrait, the opposite rule holds; the preferred view is that the board accedes to the painting. The reason given for this difference is scarcely adequate” (II.78). So Gaius repeats the received and seemingly contradictory opinion, while claiming ignorance as to the reasoning underpinning it.

The strange inconsistency is repeated a few centuries later in Justinian’s Institutes (6th century AD): writing becomes part of the parchment, while in the case of a painting, “our view makes the picture prevail over the board.” Here Justinian gives us a hint as to his — rather inadequate — reasoning, for “it would be ridiculous for a picture by Apelles or Parrhasius to accede to a board worth almost nothing” (2.1.34). In other words, it is the painting that makes the value of the object, not the board. But what if the painting is simply very bad? And why does Virgil’s writing of the Æneid on a parchment not in the same way make the greater part of the value of that parchment? Modern scholars have been unable to give a good explanation of these cases, and there is no elucidation in the texts which have come down to us.

I would note a couple of things about the texts. In the cases of writing on parchment, Justinian’s Latin reads “chartis membranisve” and the earlier text of Gaius reads “cartulis sive membranis” (literally “paper or skin”). “Paper” would presumably mean papyrus, and by “skin” is meant sheepskin or vellum. Now, by the standards of the times, these were fairly expensive manufactured items, by no means as cheap as modern paper. It is notable that there is no mention of the wax tablets that would certainly have been the more commonly used writing surface. Furthermore, vellum in particular could be scraped clean and re-used (indeed, the text of Gaius was discovered in the Vatican in the form of a palimpsest or overwritten parchment). The frequency with which this was done gives some indication of the value of parchment. Presumably ink was nowhere near as expensive, even if the letters were of gold.

A board was not typically very expensive. But paints certainly were. For one thing, a painter would normally have to make his own paints; it did not come in tubes from an art supplies shop. And many of the pigments used would be made from quite precious materials. For example, in his Natural History (Bk. 35), Pliny bemoaned the fashion of artists in his time to use ever more exotic colours made from luxurious materials, the costs of which were now being paid by the commissioners of works rather than the artists themselves (which might explain how legal disputes of this nature would arise). When it is remembered that much more paint would go on a board than ink would go on a parchment, we begin to see a possible basis for the distinction between the two cases. At least, this is the best rationalization that I can come up with.

Rights in personam and Rights in rem

Some of these rules may have seemed rather harsh to the persons involved. If you made wine with my grapes, I lost my grapes, while you seemed to gain wine at my expense. But this was not necessarily the case. For I could still sue you for the cost of the grapes. I just couldn’t sue you for the grapes themselves.

In Roman law, if I lent you my book, I might have a right to possession of that book, which was called a right in rem (a right “to the thing”). Or I might have a right against you for the value of the book, which was called a right in personam (a right “in the person”). In cases of accessio and specificatio, what happened was that a right in rem was converted into a right in personam.

Was this a distinction without a difference? Definitely not. For example, if I lent you a book, and you later became insolvent, my right in rem to the book allowed me to get it back before your assets were liquidated to pay off your debts. If my right to it was only in personam, I would have to wait my turn in line with all the other creditors to get back the value of the book from your liquidated assets — if enough remained.

Thus, although you might lose your board to my painting, nonetheless you still had a (somewhat weaker) right against me for the value of your lost board.

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