All Europe over, lawyers were being at once attracted and puzzled by the Roman doctrine of possession... Roman law compels us to hold that there are some occupiers who are not possessors. In an evil hour the English judges, who were controlling a new possessory action, which had been suggested by foreign models, adopted this theory at the expense of the termor... English law for six centuries and more will rue this youthful flirtation with Romanism.
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What an awful book the Corpus Juris is, this Bible of selfishness! I've always found the Roman code as detestable as the Romans themselves. These robbers want to safeguard their swag, and they seek to protect by law what they have plundered with the sword; hence the robber became a combination of the most odious kind, soldier and lawyer in one. Truly, we owe the theory of property, which was formerly a fact only, to these Roman thieves; and the much vaunted Roman Law on which all our present-day legislations and state institutions are based is nothing but the development of this theory in all its pernicious implications, in spite of the fact that this Law is diametrically opposed to religion, morals, common humanity and reason.
The main Roman contribution to the idea of property lay in the realm of law. Roman jurists were the first to formulate the concept of absolute private ownership, which they called dominium… Roman jurisprudence went to great lengths to stipulate every conceivable nuance of property rights: how acquired and how lost, how transferred, how sold. The rights implicit in dominium were so absolute that ancient Rome knew nothing of eminent domain.
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Justice is closely connected to respect for rights. Modern writers discuss both subjects together with no suggestion that one might discuss one with the other. It was not always so. Greek political theory and Roman Law had sophisticated ideas about justice in its various aspects, but did not embrace our conception of individual rights. This may seem counter-intuitive. How could a society recognize someone as the owner of a piece of property without acknowledging an individual right? How does legitimate one-man rule, monarchy, differ from its illegitimate parody, tyranny, unless the lawful king has a right to the authority he exercises that the tyrant does not?
The answer is that property and authority were defined by law rather than our notion of individual rights. To own property was to be the person to whom the law accorded the privileges and immunities that locally defined ownership. To be a legitimate ruler was to be the person the law designated to rule. It is a commonplace that ancient notions of law accorded far more power over property to the family and other groups than modern notions of private property do. Even under the Roman Law, where ownership had an 'absolute' and sovereign character, property was not understood in the modern way; when the law told the judge to give a man his ius, this primarily meant that he should be treated as the law required. The 'subjective' understanding of rights, whereby the right-holder may stand on his rights or not as he chooses, was not a Roman notion.
Who are we that we should invite Germany to acquiesce in the principles of "Uti Possidetis" at a moment when we possess comparatively everything and they possess comparatively nothing? It is a law as old as the world's history that those who hold valuable possessions coveted by others will hold them so long as, and no longer than, they are able to protect them by the strong arm.
Like most things under threat today, our experience of it began with the Reformation. Medieval England was part of European Christendom: it never developed a unitary concept of sovereignty while the papacy effectively claimed jurisdiction over things that were God's. The break with Rome made the difference, and Henry VIII's Act in Restraint of Appeals contained the key phrase "the Realm of England is an empire"—that is, a jurisdiction from which there was no appeal... English lawyers responded to these events by devising a new attitude to the integrity of the state. Sovereignty was not a concept that had emerged in the Roman law tradition of the continent which continued for centuries to include a host of local and corporate privileges, immunities and independent jurisdictions. The English common law swept all these away and created a single, level playing field.
Per «possessione demoniaca» s'intende la presa di possesso del corpo da parte del demonio, che lo considera come suo e lo utilizza a suo piacimento.
A theoretical defense of private property as a feature of Natural Law, however, was not fully made until the sixteenth and seventeenth centuries, the age of Jean Bodin and Hugo Grotius. But that the idea occurred to Romans is evident from Cicero’s argument that government could not interfere with private property because it had been created in order to protect it.
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The rights of a freeborn Englishman, which used to be secured to him by his native institutions, are no longer good enough. On pain of displeasing an outside world that lived under horrid tyrannies long after England was self-governing, we petition foreign judges sitting on the continent to declare and enforce our rights by interpreting at their discretion a document which no English lawyer...would imagine in a nightmare. We tolerate these judges telling the House of Commons what the House of Commons shall or shall not do. Bitterest of all, and freshest in our minds today, the English, who once were wont, if allies failed, to defend themselves alone against ‘the three corners of the world in arms’, accept with apparent docility the occupation of their soil in time of peace by self-appointed protectors, as though the Roman legions were still stationed at York and Caerleon, and we pay them the humiliating tribute of conforming ourselves to their policies, their strategies, and their philosophy. England has forgotten itself.
It is preoccupation with possessions, more than anything else, that prevents men from living freely and nobly. The State and Property are the great embodiments of possessiveness; it is for this reason that they are against life, and that they issue in war. Possession means taking or keeping some good thing which another is prevented from enjoying; creation means putting into the world a good thing which otherwise no one would be able to enjoy. Since the material goods of the world must be divided among the population, and since some men are by nature brigands, there must be defensive possession, which will be regulated, in a good community, by some principle of impersonal justice. But all this is only the preface to a good life or good political institutions, in which creation will altogether outweigh possession, and distributive justice will exist as an uninteresting matter of course. The supreme principle, both in politics and in private life, should be to promote all that is creative, and so to diminish the impulses and desires that center round possession.
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