ComradeMan
13th December 2009, 13:28
Reading through another debate on Proudhons's (in)famous comment
"Property is theft" it struck me that there is an interesting way of looking at the matter through Roman Law.
Possessio is defined as that which is held by one and de facto not by another. Under Roman Law possessio was not a right but a fact from which rights were derived- possessio non est iuris, sed facti. The wide sense of possessio is then narrowed to dominio which is more or less the equivalent of property, and it should be noted that a distinction is made between that which remains property regardless of will and that which is possessed and may or may not be abandoned.
It quod nostrum est sine facto nostro, ad alium transferri non potest.
That which is ours is ours and cannot be transferred to another without
our free consent.
This makes me think of the Acts of Enclosure in England and how the peasants had their small parcels of land robbed from them by institutional trickery.
Furthermore,
In omnibus rebus, quae dominium transferunt, concurrat oportet affectus ex utraque parte contrahentium.
In all cases of property transfer both parties involved must be willing.
This would cast doubt on the legality, from a Roman Law point of view, of most of what has gone on in the world!!!
Naturaliter videtur possidere is, qui usumfructum habet
It is considered that who naturally uses has possession
This is an interesting one- the means of production should be in the hands of the workers who should reap the full "fruit" of their labour?
On the subject of theft, "furtus" we find,
Furtum est contrectatio rei fraudulosa lucri facendi gratia, vel ipsius rei etiam usus possessionisve
Theft is the taking of something "mobile" (hence land may have been excluded here) by fraudulent meant to reap the benefits (i.e. rights) of possession.
to which,
Furtum sine affectu furandi non committitur
Theft cannot be done without intent of robbery, i.e. there is no accidental theft.
No one is suggesting here that the Romans were anarchists nor that Proudhon et al, were deriving their ideas from classical jurisprudence however it is interesting to note how long these ideas and concepts have been around.
My own understanding of Proudhon's comment that seems to cause so much controversy is that most of what has been claimed legal property was in fact based on theft. Seeing as property is not a right in itself but a fact, anyone who claims it as a right sine qua non, such as feudal barons or wealthy landowners etc was in effect breaking the natural law of things.
"Property is theft" it struck me that there is an interesting way of looking at the matter through Roman Law.
Possessio is defined as that which is held by one and de facto not by another. Under Roman Law possessio was not a right but a fact from which rights were derived- possessio non est iuris, sed facti. The wide sense of possessio is then narrowed to dominio which is more or less the equivalent of property, and it should be noted that a distinction is made between that which remains property regardless of will and that which is possessed and may or may not be abandoned.
It quod nostrum est sine facto nostro, ad alium transferri non potest.
That which is ours is ours and cannot be transferred to another without
our free consent.
This makes me think of the Acts of Enclosure in England and how the peasants had their small parcels of land robbed from them by institutional trickery.
Furthermore,
In omnibus rebus, quae dominium transferunt, concurrat oportet affectus ex utraque parte contrahentium.
In all cases of property transfer both parties involved must be willing.
This would cast doubt on the legality, from a Roman Law point of view, of most of what has gone on in the world!!!
Naturaliter videtur possidere is, qui usumfructum habet
It is considered that who naturally uses has possession
This is an interesting one- the means of production should be in the hands of the workers who should reap the full "fruit" of their labour?
On the subject of theft, "furtus" we find,
Furtum est contrectatio rei fraudulosa lucri facendi gratia, vel ipsius rei etiam usus possessionisve
Theft is the taking of something "mobile" (hence land may have been excluded here) by fraudulent meant to reap the benefits (i.e. rights) of possession.
to which,
Furtum sine affectu furandi non committitur
Theft cannot be done without intent of robbery, i.e. there is no accidental theft.
No one is suggesting here that the Romans were anarchists nor that Proudhon et al, were deriving their ideas from classical jurisprudence however it is interesting to note how long these ideas and concepts have been around.
My own understanding of Proudhon's comment that seems to cause so much controversy is that most of what has been claimed legal property was in fact based on theft. Seeing as property is not a right in itself but a fact, anyone who claims it as a right sine qua non, such as feudal barons or wealthy landowners etc was in effect breaking the natural law of things.