The idea of property structures virtually every aspect of our lives. It informs our views about the market and our understanding of the role of the state; it also shapes how we conceive of the physical space we inhabit and how we relate to each other. In contemporary liberal democracies, lawyers and nonexperts alike understand property as a set of robust legal entitlements that give the owner broad control over a resource, while also recognizing that these entitlements are shaped to reflect the characteristics of different resources and limited to protect the interests of others and of the public in relation to specific resources. This contemporary idea of property is often seen as arising from Anglo-American political and legal thought. In this view, the emphasis on the owner’s power is rooted in Lockean liberalism and epitomized by the notion of “sole and despotic dominion” made famous by the eighteenth-century English jurist William Blackstone;Footnote ¹ the realization of the necessarily limited character of ownership entitlements is the product of twentieth-century sociological jurisprudence and American Legal Realism.Footnote ²

This book challenges this conventional wisdom by tracing the evolution of the contemporary idea of property to Roman law and its creative reinvention in continental Europe, and its informal imperial periphery, over the course of the nineteenth and early twentieth centuries. I endeavor to show that our understanding of property is deeply indebted to the legal concepts developed by a global network of jurists, located in France, Germany, Italy, and later in Latin America, who shared a training in Roman law and the ambition to “modernize” their countries’ property law. I call the property tradition explored in this book “Romanist-bourgeois” because the jurists, in their effort to modernize property, turned to Roman antiquity, selectively appropriating doctrines developed by the Roman jurists and creatively reshaping them to meet the needs of nineteenth-century economies and bourgeois societies.Footnote ³

Beginning in late eighteenth-century France, jurists embarked on a project that would have momentous economic and cultural consequences: developing a new concept of property and a new body of property doctrines for modern, liberal, industrializing society. As European countries started on the long and tortuous path toward liberalism and capitalism, their property systems were still, largely, based on forms of limited and hierarchical landholding that smacked of feudalism and seemed inimical to productive enterprise. Property needed a dramatic transformation and a clear break with anything “feudal.” Working in relative isolation from parallel intellectual developments in the Anglo-American world, jurists in continental Europe and its peripheries “invented” a modern concept of property inspired by a largely fictitious idea of Roman dominum. La proprietà, la propriété, Eigentum, la propiedad, despite their differences, were all molded on the blueprint of dominium. By the 1850s, the quest for modern property had spread to the informal periphery of Europe, and the discourse of property modernization continued, albeit in different terms, well into the twentieth century.

The making of modern property is a project that unfolded over two centuries, during which, successive generations of metropolitan and peripheral jurists trained in Roman law engaged in a dialogue over the structure and the scope of property, as well as its justification. They devoted their legal creativity and their intellectual and political energy to what they saw as a shared, and to some degree global, project. To be sure, not all was new. The conceptual foundations of the new concept of property were already solidly in place. The canon lawyers of the twelfth through fourteenth centuries and the Spanish Scholastics of the sixteenth century had firmly established the idea that made Romanist-bourgeois property possible: the idea that property is a subjective natural right, a right or power of the individual grounded in the law of nature and in reason. However, while historians have extensively explored the medieval and early modern foundations of modern property,Footnote ⁴ a comprehensive account of the invention of Romanist-bourgeois property has yet to be written.Footnote ⁵

The Romanist-bourgeois property tradition is more complex and capacious than the now dominant Anglo-American property culture. It includes the idea, allegedly Roman, and purely aspirational, that property consists of “absolute” dominium, but it also foregrounds the notion that property has a “social function,” a notion to which jurists have attributed widely differing scope and content, depending on their moral and ideological commitments. However, the truly distinctive, and largely forgotten, contribution of this alternative property tradition is that its focal point is the “things,” or resources, that are the object of property rights. Jurists trained in the Romanist tradition sought to mediate the apparently intractable tension between the owner’s “absolute” dominium and property’s “social function” by focusing on the “thing,” on the specific interests and values implicated by the different resources that can be the object of property. One of the most prominent property scholars in the United States recently described property as “the law of things.”Footnote ⁶ Roman property law was quintessentially a “law of things.” The Roman jurists classified the res (things) that can be owned according to their physical characteristics, social and economic value, and cultural and religious meaning, and they shaped ownership entitlements to reflect these features. In Roman law, a special set of rules applied to objects used for the cult of a deity, to tombs or burial grounds, and to the wall and gates of the city; air, running water, the sea and the seashore were treated differently than roads, rivers, and harbors; land situated in Italy, enslaved individuals, or four-footed animals were subject to special rules that did not apply to all other things. Building on the insights of their Roman predecessors, nineteenth-century jurists understood that the dilemmas of property law, that is, the tension between the owner’s entitlements and the interests of neighbors or the public, can be eased only through a practical, contextualist analysis of the unique characteristics of resources as different as water, minerals, agricultural land, housing, or commercial property. Conflicts between ownership prerogatives and the public interest as well as tensions between the multiple goals that property aims at facilitating, which include autonomy, self-authorship, equality, and efficiency, remain an ineluctable challenge of any property system to this day. The focus on resources as key to mediating these conflicts is a critical intuition, now accepted by economists and by the most sophisticated property theorists, but one that has remained marginal to Anglo-American property until relatively recently.Footnote ⁷

For over two centuries, this Romanist-bourgeois notion of property – with all its complexities and tensions, the aspiration to absolute dominium, the realization that property has an ineludible social dimension, and the pragmatic focus on “things” – has occupied a central place in the imaginary of modern Europe. Starting in eighteenth-century France, property quickly became synonymous with modernity. It was hailed as the cornerstone of the new political structure of modern Europe, the horizontal order of politically equal citizens and free owners that replaced the vertical feudal hierarchy. This modern notion of property was also the foundation of the new economy that was slowly moving toward capitalism. Because of these manifold aspects of significance, a numerous and diverse cohort of writers and scholars claimed an expertise in property. Philosophers and political theorists discussed the reasons and goals that justify giving individual private property rights. Economists investigated its relation to economic growth and proposed a variety of recommendations for reform. The agronomists of the many “Agricultural Societies” that flourished in eighteenth- and nineteenth-century Europe had their own theories on the relation between property and agricultural improvement. And pamphleteers of all stripes debated the virtues and vices of property. But the ones who did the actual work of shaping and operationalizing modern property were the jurists, academic and practicing. The jurists were the architects of the modern law of property and the movers and shakers in the real-world life of property. Yet, their work is largely underappreciated. Historians of property have delved deep into the more rousing writings of publicists and the normatively ambitious theories of philosophers and economists but have left the technicalities of property law to the competence of doctrinal lawyers. This book retrieves the work of the jurists from the narrow purview of doctrinal studies and restores it to its central place in the global intellectual history of modernity. The making of Romanist-bourgeois property is a fascinating story of economic and political struggle, professional power and scholarly devotion. It is also a story about the circulation and coproduction of specialized knowledge across geographic and imperial boundaries through global intellectual networks.

Modernizing Property

The jurists who are the main characters of this book belonged to a generation of legal academics who began in the early nineteenth century to share, albeit with varying acuity and commitment, the consciousness of living in a new, “modern” era. Enlightenment ideas about progress, the complex legacy of the revolutionary upheavals, the development of agrarian capitalism in England, and, later, the shock of industrialization and the shifting configurations of class struggle were among the transformations that engendered and solidified the experience of modernity.Footnote ⁸ The jurists experienced a sense of unprecedented and seemingly incessant change that demanded an overhaul of the legal system. Because of property’s centrality to questions of constitutional political economy, the reform of property law appeared particularly urgent. Property was one of the central institutions of the new modern age and the jurists set out to modernize the law of property. Yet, their understandings of what modernization entailed differed dramatically and changed over time.

In the late eighteenth century and well into the nineteenth century, modernizing property meant dismantling the vestiges of feudal property that still existed throughout continental Europe and creating a new property law infrastructure, capable of supporting the development of a more advanced and productive agricultural economy and of facilitating investment in land by a rising entrepreneurial middle-class. The development of agrarian capitalism in England made an impression on the reformist elites of the Continent, inspiring ambitious disciplinary reform agendas focused on agricultural improvement, from the political economy of the Physiocrats to the science of public administration advocated by the German “Cameralists.” A strident anti-feudal rhetoric inspired these reform agendas and a robust and secure notion of private property was their centerpiece. Yet, in large sections of the European continent, land was still held in a dizzying variety of limited and divided ownership forms that were, essentially, feudal. While European feudalism was internally diverse, feudal property was, by and large, “divided property” (dominium divisum) with ownership entitlements effectively split between two owners, an owner with dominium directum, that is, title, and an owner with dominium utile, that is, use rights and a set of varying, but often burdensome, duties. This split and limited feudal landholding regime had, obviously, changed over time. By the eighteenth century, holders of dominium utile had acquired broader rights to use and transfer and had been relieved of many of their duties. Nonetheless, these old property forms appeared antithetical to the new liberal and reformist ideas. They tied up superior and inferior owners in rigid status hierarchies and contravened the new imperatives of improvement and enhanced productivity by limiting the ability of direct users to manage the land.

Inspired by the ideas of liberal philosophers and political theorists and guided by the experts’ recommendations about agricultural improvement, the jurists who made it their mission to modernize property sought to wipe out any feudal remnants and to introduce a modern concept of free and full property. Modern property, reformers argued, would not allow for hierarchies between a superior and an inferior owner or for different property gradations, as between full property and property that is less than full. Modern property would be the one and only right of its kind, a broad and secure right that gives the owner a full set of robust entitlements. To craft this modern concept of property, nineteenth-century jurists turned to Roman law. From the rich inventory of Roman property concepts, they selected those that conferred on owners the broadest control over the resources they owned. Through this selective reading, they recast Roman dominium as an “absolute” and “exclusive” right. Of course, absolute ownership, free from restrictions, is impossible in any organized society and Roman property was far from absolute. Yet “absolute” became the jurists’ mantra, a catchphrase signaling that property is a right unique in kind, broad in content, and robust vis-à-vis others and the state. Having effectively invented this idea of Roman “absolute” dominium, the jurists proposed it as the blueprint for the property law of modern European nation-states. This Roman-inspired, modern concept of dominium held two promises. It promised to establish the foundations for liberal constitutionalism, for a horizontal political order of equal citizens endowed with free, full, and secure property rights; and it promised to facilitate the transition from a pre-capitalist agrarian economy to increasingly capitalist relations of production. Feudal “superior” owners extracted profit from dependent, “inferior” owners through direct, extra-economic coercion, in the form of military, political, or juridical power.Footnote ⁹ By contrast, with modern dominium firmely in place, land would be held by owners who, secure in their property rights, would seek to extract maximum profit from legally free wage laborers by purely economic means.Footnote ¹⁰

The transition to a capitalist economy in continental Europe would eventually prove more uneven, slower, and more difficult than the proponents of absolute property had anticipated. Residual semi-feudal powers and privileges proved difficult to eradicate. In France and in Germany, the absolutist state afforded the propertied classes new modes of appropriating profits through political coercion rather than through purely economic coercion. And, in the short term, the new concept of property strengthened the rights of small peasant owners and prevented the rise of a class of large capitalist landowners comparable to the English one. Absolute property would deliver its promises only in the long term, in conjunction with changes in the nature of the state, the development of an integrated national market, and the pressure of an increasingly international capitalist system.

When, later in the nineteenth century, the discourse of property modernization as the establishment of a new, Romanist absolute dominium reached the informal periphery of Europe, the agenda of the modernizers was more complex and multifaceted. Absolute property lent itself to the diverse concerns of the local modernizing elites. Latin America is a case in point. Economic development was a priority for the modernizers of the newly independent republics of Latin America. While, in the nineteenth century, Spanish America was well integrated into the metropolitan-dominated world market, the prevailing relations of production were still pre-capitalist. Property forms such as the hacienda or the inquilinaje differed from the old world, but they could still be called “feudal” as they were based on extra-economic coercion of unfree, servile labor. The expansion of the world market, far from acting as a disintegrating force on feudalism, actually consolidated feudalism, strengthening these forms of servile coercion to increase production.Footnote ¹¹ Between the 1840s and the 1870s, republican legislatures in Mexico, Chile, and Colombia came to see absolute dominium as key to establishing and expanding a “modern” sector of the economy, moved by the constant desire for growth that would come by way of improving the labor productivity of a workforce of free wage laborers, largely of indigenous descent. Modern dominium developed in conjunction with racial schemas that defined the modern, rational, productive economic actor as white, European, or creole. This definition justified the dispossession of indigenous populations who were portrayed as lacking the moral virtues and ethos of productivity required to be owners. Dispossessed of their individual and communal lands, indigenous direct producers formed a large class of propertyless wage laborers vulnerable to the economic coercion of the landed creole elites. Yet, in the identity-creation discourse of the newly independent republics, the racialized nature of modern dominium was conveniently played down and the attention centered instead on the image of the abstract, raceless, citizen-owner endowed with free and full dominium that formally admits no hierarchies.

However, by the late nineteenth century, the jurists’ ideas about modernizing property changed. European nations faced increasing social interdependence, the negative spillover effects of industrialization, the “social question,” and the mounting antagonism of the working classes. The public conversation about property and its role in modern society had already started changing decades earlier. In 1840, Pierre-Joseph Proudhon published his incendiary attack on private property as theft and a practical impossibility, because if it existed “society would devour itself.”Footnote ¹² And in the 1840s, Karl Marx outlined the fundamentals of his own critique of the exploitative nature of private property.Footnote ¹³ By the 1850s, a heated debate about the nature of private property pitted the many and diverse strands of socialism that were blossoming in Europe against the liberal elites who had forged modern Romanist dominium.Footnote ¹⁴ However, the juristic conceptualization of property only started shifting when a new generation of jurists, inspired by the themes of this impassioned public debate on property, but also committed to a new, purpose-oriented method of legal analysis, took a more realistic approach to property.

Starting in the closing decades of the nineteenth century, as France was experiencing a radical social and economic transformation, a new generation of jurists inquiets called for methodological renewal in the study of private law, prompting jurists like Emmanuel Lévy (1871–1944), Léon Duguit (1859–1928), and Louis Josserand (1868–1941) to denounce the growing gap between the purely abstract concept of absolute dominium and the life of property law on the ground, in which constantly evolving legislation limited proprietary entitlements and burdened owners with new duties.Footnote ¹⁵ In Germany, between the 1860s and the first decade of the twentieth century, a methodological and epistemological reorientation also encouraged a new approach to property. Rudolf von Jhering (1818–1892) led the revolt against philosophical abstraction and conceptualism in German jurisprudence, shifting the focus of legal analysis from the question of the formal definition of property to the question of its function.Footnote ¹⁶ Further, in 1904, Austro-Marxist Karl Renner (1870–1950) published his famous The Institutions of Private Law and Their Social Functions, in which he analyzed how property, without changing its form, had changed its function. In the stage of simple commodity production, property could still be simplistically portrayed as a comprehensive and self-sufficient legal institution concerned with owners and their “things.” By contrast, with the development of industrial capitalism, property shifted its concern to the relations between capital and labor and necessarily required supplementary institutions, such as the employment contract and company law.Footnote ¹⁷ More generally, society and the economy came to be understood in pluralistic rather than individualistic terms, as constituted not by individuals but by collective organizations representing them, such as trade unions or collectives of homeowners and tenants. This new framework undermined the very idea of a coherent property law system unified by the normative commitment to protecting the will of the individual. Further, throughout Europe, the war economy of the First World War led to resource-specific emergency and social legislation, with the long-term effect of redesigning entire subfields of private law.Footnote ¹⁸ For instance, the state enacted legislation addressing housing shortages and took control of much of extractive industry. Consequently, property law specialized into separate subdomains governed by ideas such as individuals’ social obligations and duties with regard to housing or mineral wealth.

The social critics differed in their ideological commitments. Utopian socialists and revolutionary communists challenged the very idea of property as a natural right, denouncing first appropriation as an act of violence and property as an arbitrary creation of the state and demanding a collectivist property system. Still others were inspired by “solidarism,” a strand of left-republicanism that emerged in the late nineteenth century and claimed that property rests on the modern division of labor and hence is “common wealth” to be divided into individual and public shares. The social critics attacked modern absolute dominium as descriptively inaccurate and normatively undesirable. They recognized that property cannot be absolute and they exposed the negative, real-world outcomes of “absolute” proprietary entitlements. The recent economic and social transformations, the critics argued, required shifting the focus of property debates from owners’ freedom to neighbors’ security from harm, from absolute dominium to the notion that property is, and should be, regulated. The liberal architects of absolute dominium were preoccupied with enabling the freedom of productive owners. By contrast, their critics attempted to lessen the negative effects of industrial uses of property and to grant limited protection to nonowners seeking to use or access critical resources such as agricultural land or urban housing. Truly modern property was now seen as having a “social function” and modernizing property now meant limiting and regulating ownership entitlements.Footnote ¹⁹ To be sure, this transformation in the juristic project of property modernization was by no means clear-cut: modern absolute dominium lingered and would never disappear. Yet the questions the jurists raised in their essays and monographs changed and so did the larger public conversation about the place of property in modern society.

The social jurists’ attack on modern, Romanist dominium started in the core countries of continental Europe, but it was escalated by jurists in the periphery, particularly in Latin America, in the first decades of the twentieth century. Throughout Latin America and the Caribbean, arguments and priorities in the debates about property law modernization had also changed. Earlier in the nineteenth century, the legislatures of the newly independent republics had incorporated absolute dominium in their recently enacted codes in the belief that it would facilitate the transition from an incipient market economy to a capitalist system connected to the international markets. However, by the end of the century, it was clear that modern dominium had failed to deliver on its promises. Traditional and indigenous property forms had been eliminated almost everywhere, and yet, land was concentrated in the hands of latifundia owners, who were not capitalists but rather employed a variety of disguised forms of servile labor and extra-economic coercion. The struggle over land between the landed elites and the dispossessed peasants resulted in endemic rural violence. In the last quarter of the nineteenth century, in several Latin American nations, liberals returned to power, armed with a new approach to social policy inspired by scientific positivism and the social sciences. By the dawn of the new century, nurtured in this intellectual milieu, the idea of property’s “social function” was rapidly gaining steam and academic jurists and legislators reshaped, and often radically expanded, the “social function” doctrine in light of local struggles and demands.Footnote ²⁰ Again, as with Romanist dominium, “social property” became an integral part of racialized identity-building efforts. “Social property” proved a key concept in the struggle between the liberal elites and a variety of emergent social movements, including the politically active middle and working classes and the indigenous communities, over the scope of republicanism and democratic innovation. In Chile, the moderate liberals of the Club de la Reforma embraced the idea that property ought to serve the common good and presented the Chilean republic as the ideal terrain where the (European) idea of modernity – inspired by Roman law and based on the greatest extension of liberty and property to its ostensibly raceless citizenry – could flourish. By contrast, radicals such as Francisco Bilbao (1823–1865) and Santiago Arcos (1822–1874), founders of the Sociedad de la Igualdad, envisioned a distinctively Latin American modernity built on equitable access to property and inclusive of the urban artisanal class and of indigenous populations of the southern region of Araucania.Footnote ²¹ The idea of social property found its most expansive formulation in the debates surrounding the adoption of the Mexican Codigo Civil of 1928, and particularly in the work of Francisco H. Ruiz (1872–1958). Close to the global network of scholars known as socialismo jurídico, Ruiz conceived of the code as codigo privado-social, which would “extend the sphere of law from the rich to the poor, from the owner to the worker,” and of property law as a tool for empowerment rather than for the domination of one class over the other.Footnote ²²

The appropriation and expansion of modern “social property” by peripheral jurists was by no means limited to Latin America. In Egypt, between the 1930s and the 1950s, the “social function” of property was embraced by the moderate legal reformers who sought to shape a modern Arab civil law.Footnote ²³ In an Egyptian monarchical society polarized between rich and poor, urban and rural, reformers shunned ideas of agrarian reform and instead hoped to promote “social solidarity” by emphasizing the social limits of absolute property. And after the Nasserite revolution of 1952, the “social function” of property was dramatically expanded and radicalized, becoming a critical aspect of Arab Socialism.

The counterattack on social property was just as powerful as the social critics’ assault. In Europe and in Latin America, conservative liberal jurists denounced the idea that modern property varies in scope and that it leaves ample room for affirmative social obligations as a return to the oppressive system of limited and divided property dominant before the liberal revolutions or the struggles for independence. The powerful anti-feudal rhetoric used to support the introduction of modern Romanist dominium into the legal systems of European and Latin American nations was revamped, and allusions to the return of feudal property dotted the introductions to property law monographs, newspaper articles, and political pamphlets.

Despite the virulence of the social critics’ attack, “social” property never ousted modern absolute dominium. These two ideas about the nature of modern property and the differing objectives of the property modernization agendas coexisted uneasily well into the twentieth century. The concept of dominium and the idea of “social function” became the two foundational pillars of a capacious and contradictory Romanist-bourgeois property culture. And ever since, jurists, courts, and legislatures have struggled to navigate the tension between these two central ideas.

Why Rome? The Modern, Bourgeois Revival of Roman Dominium

In their effort to craft a new concept of “absolute” property for modern Europe, nineteenth-century jurists turned to Roman antiquity. Their choice may appear baffling. In Roman law, property was by no means “absolute,” in the sense of free from restrictions. In fact, Roman law imposed a set of limits on owners that looked very much like those of a modern legal system. Nor was Roman property unitary in the sense that it knew only one form of ownership. Alongside dominium, the form of ownership reserved to Roman citizens, there existed a wealth of more limited forms of “owning” resources, a plurality of resource-specific and variable packages of property entitlements. Not only was Roman property neither absolute nor unitary, Roman law did not even provide a definition of dominium. Yet, modern jurists’ turn to Rome is hardly surprising.

Neo-Romanism was not new. It had long been an irresistible temptation for lawyers in continental Europe. There had been two previous waves of pronounced neo-Roman initiative, each with distinctive characteristics. In the thirteenth and fourteenth centuries, the jurists in the recently founded law schools had reappropriated the texts of Justinian’s Corpus Iuris Civlis to craft a new, supra national ius commune for Europe. Later, the Humanists of the fifteenth and sixteenth centuries sought to restore the philological purity of the Roman materials and to reorganize them in a more logical order. But the third wave of neo-Romanism, in the eighteenth and nineteenth centuries, was remarkable in its sheer creativity and scope, extending well beyond private law.Footnote ²⁴

Roman law provided jurists and legislatures with a rich inventory of property doctrines that could be repurposed to fit modern needs. However, what most attracted the nineteenth-century jurists was the fact that Roman law, along with doctrinal blueprints, also offered a method of analysis, a science of property law. Developed by jurists outside of their time, this science of law could be presented as far remote from the pressure and immediacy of political and economic conflicts. The science to which modern jurists looked was the so-called classical Roman science. The jurists of the late Republic (133–31 bc) had transformed law into a “science” by importing from Greek philosophy a logical method of classification that organized concepts and sub-concepts according to a general-specific relation. The jurists of the classical era (roughly 30 bc to ad 240) further perfected this method, refining the taxonomy sketched by the republican jurists. The resulting mode of legal analysis combined formalism and practical reason. Legal concepts were divided, subdivided, organized into a logical system, and then applied to concrete cases, real or imaginary. The modern jurists saw a fundamental affinity between this mode of reasoning and what they regarded as the canons of an objective and rigorous science. Roman legal science provided a sophisticated property “syntax,”Footnote ²⁵ a system of fundamental concepts that could be used to govern property relations in modern societies with the appearance of impartiality. The result was a new method of legal reasoning that casuistically explored the contours of legal ideas and their relations and organized them systematically.

In Rome, along with a scientific mode of reasoning, the modern jurists also found a powerful professional role model: a prestigious professional class of jurists uniquely qualified to play a preeminent role in governing property relations by virtue of their technical expertise and ethos of neutrality. Starting around the middle of the second century bc, the Roman jurists asserted themselves as the experts who would develop a stable, technical, and neutral framework of legal concepts to secure citizens’ property rights and structure their interactions, gaining in return professional power and unprecedented intellectual prestige.Footnote ²⁶ By presenting themselves as the heirs of the Roman jurists, the nineteenth-century jurists made more persuasive their claim to the role of architects of modern property, further consolidating their position vis-à-vis the courts and the political process, as well as the other specialists asserting an expertise in property.

But turning to Roman law was an obvious choice also because it accorded with the larger cultural and political sensibility of the late eighteenth and nineteenth century. In France, the myth of republican Rome was ubiquitous in the arts, the letters, the language, and fashions of the revolutionary period.Footnote ²⁷ In the history and institutions of republican Rome, the revolutionaries found an ideology of opposition, an idealized notion of liberty, a fully fledged republican vocabulary and blueprints for political and legal institutions. Roman antiquity was also used to justify revolutionary violence.Footnote ²⁸ The bloodshed that led to the foundation of the Roman republic also provided an illustration and rationalization of the sacrifices expected of republican founders and citizens. In the Napoleonic era, the cult of antiquity was particularly germane to law, with Napoleon presented as the new Justinian and the Code Napoléon as the new Corpus Iuris Civilis.Footnote ²⁹

In the German-speaking world, Roman law, private and public, had also long been considered a beacon of justice and an unrivaled expression of fine juristic craftsmanship. In 1816, an incredible discovery further boosted the prestige of Roman private law. As he was parsing through the collections of the library of the cathedral of Verona in search of Saint Jerome’s Epistles, German scholar Barthold Georg Niebuhr (1776–1831) found a manuscript of an entirely different kind: a legal text. Niebuhr knew he was on to something momentous and he alerted his friend Friedrich Karl von Savigny (1779–1861), one of the greatest Roman law scholars. “My dear Savigny,” Niebuhr wrote, “here lies a treasure waiting for your hands to dig it up; a bait that shall lure you over the Alps to us, or will you persuade someone else to come?”Footnote ³⁰ Savigny did not travel to Verona but the Royal Academy of Berlin sent a delegation to reproduce the manuscript in its entirety. The manuscript turned out to contain nothing other than the Institutiones, the textbook authored by the celebrated Roman jurist Gaius (ad 130–180) long thought to be lost. The discovery of Gaius’ textbook generated an outburst of enthusiasm throughout Europe and sparked even greater interest in Roman law science.Footnote ³¹ No less influential than private law was Roman public law, which had long pervaded debates about political freedom and constitutionalism in the German states. In the sixteenth century, Roman freedom and Roman law were critical to the “Public Peace Movement,” a treaty-based arbitral system that sought to pacify conflicts between cities or princes in the absence of a central state with the monopoly of legitimate force.Footnote ³² And, in the Romantic era, the Roman constitution of the time of the Nerva-Antonine Dynasty, was celebrated as a model of harmony that could nurture the new German anti-absolutist constitutionalism.Footnote ³³

Because Roman antiquity had so much to offer, Neo-Romanism remained a critical feature of the discourse of modern property well into the twentieth century. For jurists and legislators, “Roman” property and its putative opposite, “medieval” or “feudal” property, became two powerful archetypes used to describe starkly different visions of the economy and society. For most of the nineteenth century, the former almost invariably alluded to a variety of desirable goals: a scientific method, impartiality, individual autonomy. The latter, with rare exceptions, had a pejorative flavor, signifying conceptual confusion, political oppression, economic exploitation, and personal servitude. Toward the very end of the nineteenth century – as a variety of socialist utopias flourished in Europe and Latin America – in insular circles of socialist reformist jurists, “medieval” property lost its negative connotation and came to suggest an organized cooperative economy and an interdependent and cohesive society.

Two Conceptual Models of Property: Absolute Dominium and Social Property

Pretending to revive a Roman concept of absolute dominium that hardly existed in the first place, early nineteenth-century jurists shaped a concept of property with a number of critical features, all of which evinced the absolute character of the owner’s right. To begin with, modern dominium was described as an exclusive relation between a person and a thing. It denoted how one person, the owner, relates directly and exclusively to a resource and exercises broad control over it. Today, the idea that property is a social relation, that property signifies how two or more persons are related with respect to a resource, is widely accepted among property scholars.Footnote ³⁴ And, it is difficult even for an observer with no legal training to fathom how others – non-owners who nonetheless have an interest in the property – could fall out of sight: others who have a duty to stay off the owner’s land, neighbors who interfere with the owner’s quiet enjoyment of the land, members of community who have to suffer the consequences of the owner’s use. Yet, effacing the social and relational nature of property was the foundational conceptual move of the architects of modern dominium, the move that, in turn, determined, all its other features.

This exclusive relation between the owner and the thing was structured as a unified aggregate of absolute entitlements. To be sure, the owner has discrete entitlements that our jurists, in their treatises, analyzed separately for analytical purposes: the ius utendi, fruendi, and abutendi. However, these entitlements were seen as being tightly packaged to form a monolithic right that gives the owner virtually absolute control over a resource. Single entitlements may not be eliminated by the government and owners who wish to parcel out single entitlements through private bargaining may only choose among a limited number of predetermined forms.Footnote ³⁵ In other words, each of these entitlements needs to be present for the relation between the owner and the thing to be characterized as property.

Owners’ apparently limited ability to transfer single entitlements is a particularly puzzling feature of modern dominium and one that exposes a fundamental tension at its core. On the one hand, our jurists were committed to developing a property law system that would facilitate the goals of a modern economy. One of the ways owners derive value from their property and accomplish their economic plans is precisely by parceling out entitlements. For this purpose, Roman law recognized a sizable menu of iura in re aliena, literally “rights over a thing owned by another.” Owners could grant easements and servitudes, split ownership between the owner of a building and the owner of the subjacent land, transfer broad use rights for life to another through a usufruct, or cede a form of control akin to ownership for a long term through an emphyteusis. On the other hand, these “rights over a thing owned by another” threatened the very idea of absolute property because they burdened or, when broad in scope, potentially emptied the owner’s property rights. In other words, the needs of a modern economy were at odds with our jurists’ desire to preserve the conceptual coherence of their idea of absolute property. Easing this tension required a good dose of conceptual creativity, and the jurists’ solution was to distinguish between varying degrees of property’s “absoluteness” or “perfection” and to emphasize that property is flexible. Dominium is, in principle, “perfect” but, because of its inherent flexibility, it could become, temporarily, “imperfect” or “very imperfect” if entitlements are parceled out to others.

Not only were ownership entitlements indivisible, they were also invariable. The shape of each individual entitlement – which activities or uses it covers, how it is enforced, who and how many should enjoy it – is fixed, that is, not subject to variation. This notion of property as invariable could only be maintained by eclipsing the relational nature of property. Only by neglecting the fact that each of the owner’s entitlement imposes a correlative burden or dis-entitlement on others – that if the owner has the right to exclude from the land, others have a duty to stay off – could the architects of Roman-bourgeois dominium evade the question of whether the owner’s entitlements should be qualified to protect the interest of others and the community at large. Because they did not attend to the relational nature of property, the architects of Romanist-bourgeois property could present it as the owner’s ample sphere of negative liberty. The image of property as a “sphere” of absolute sovereignty over a thing, free from the coercive interference of either the state or other private individuals, was a common trope in the writings of our jurists, from Savigny to the Italian Pietro Bonfante (1864–1932). And so was the idea that property law’s task is merely to coordinate the seamless coexistence of these independent spheres of sovereignty to make sure they never come into conflict.

Critical among the entitlements that constituted modern dominium was the owner’s right to destroy the thing owned. The status of the right to destroy one’s property in Roman law was at best uncertain. A passage from the jurist Ulpian (ad 170–228?) did include the phrase re sua se abuti but, in all likelihood, abuti meant “to be consumed” rather than destroyed.Footnote ³⁶ However, in the treatises of the nineteenth-century jurists, the ius abutendi took on new meaning, becoming a critical feature of ownership, the most striking example of the owner’s absolute sovereignty. Today, courts and property scholars are reluctant to recognize that the owner has a right to destroy valuable property, but the few who do cite a wealth of expressive and social welfare reasons.Footnote ³⁷ In this contemporary view, the right to destroy allows the owner to express deeply felt values, protects privacy, and furthers innovation and creativity. While the architects of modern absolute dominium poured rivers of ink to emphasize the importance of the right to destroy, their normative justifications always and unmistakably appealed to an abstract concept of negative liberty.

Monolithic and invariable, modern dominium was therefore also insensitive to context and resource type. The owner has the full aggregate of absolute entitlements, regardless of the resource owned. This lack of nuance and contextualization is the feature of modern dominium that was most un-Roman. The Roman jurists foregrounded the res, the things, their unique features, their meaning, value, and use. In their treatises and textbooks, the nineteenth-century jurists did offer long and detailed accounts of the Roman classification of things, often in the manner of an introductory section. However, by and large, this introductory classification read as an antiquarian conceptual exercise, with hardly any bearing on the discussion of the content of ownership entitlements that followed.

Modern Romanist dominium was also broad in space and perpetual in time. Our jurists solemnly invoked the maxim cuius est solum, eius est usque ad coelum et ad inferos, attributed to the medieval Italian jurist Accursius (ca. 1182–1263) and declared that the owner’s rights extend upwards to the heavens and downward to the center of the earth.Footnote ³⁸ These confident and serious statements about the spatial reach of property were largely unsupported by the Roman sources, but this did not prevent our jurists from insisting on the broad spatial scope of ownership rights. Time was another critical dimension of Romanist-bourgeois property. The owner’s entitlements were perpetual and not subject to temporal terms or conditions. While some acknowledged that no Roman text supported this statement, our jurists were content to declare that the perpetual nature of property was logically implied by its absolute character.

Abstract and aspirational, the concept of absolute dominium dominated property debates for most of the nineteenth century until, in the 1880s, the social jurists launched their attack. The social critics engaged the proponents of modern dominium in a heated contest over the definition and the scope of modern property and proposed an alternative conceptual model of property that placed front and center the social interdependence that characterized the developing modern industrial economy. This contest over the nature and the scope of property was also a contest over the nature of Roman property law. In the academic discipline of law, no matter how influential the new sociological and positivist theories proved, Neo-Romanism remained the intellectual currency of the day. Hence, just like the jurists who had crafted Romanist absolute dominium, the social critics also felt the need to legitimate the doctrines they proposed by emphasizing their Roman origin. However, the social jurists projected a starkly different image of the legal past: in their hands, Roman property became limited and remarkably pluralistic.

The social critics’ first move was to show that the Roman law of property was far from absolute and was more than mere dominium. “Absolute” dominium was only one of the several ownership forms that Roman property law made available. Alongside dominium, the critics argued, there was a multiplicity of more limited forms not technically called “property” but rather designated with formulas such as possidere or habere, possidere, frui. These forms granted their holders relatively robust sets of use entitlements that effectively resembled ownership and yet were far from absolute, being subject to a variety of limitations with regard to enforcement and transfer.

Another important move of the critics was to emphasize the relational nature of property. To the idea of dominium as the relation between the owner and a thing, the social jurists contraposed the notion that property is a web of relations between the owner and others with respect to the thing. The critics zeroed in on the structure of the property relation, showing how, for each of the owner’s entitlements, there is a corresponding disentitlement for another. In other words, private property, always and necessarily, entails a degree of coercion. This awareness led the critics to raise the question of which entitlements, and of what scope, owners should be granted. It predisposed them to accept the elimination or limitation of single entitlements when the correlative burden imposed on others was not justifiable. It also encouraged them to retrieve the ostensibly Roman notion of “abuse of rights,” by which the owner has a duty to exercise her entitlements reasonably. The relational and coercive nature of ownership entitlements is usually considered a relatively recent intuition that contemporary property theory credits to the American jurist Wesley Newcomb Hohfeld (1879–1918) and to representatives of the loose intellectual movement known as Legal Realism, such as Felix Cohen (1907–1953) and Robert Hale (1884–1969). Only rarely are we reminded that the most sophisticated property scholars in the Roman law world had long been keenly aware that property is a web of social relations that, by necessity, involves disentitlements and coercion. These scholars were particularly alert to the relational and coercive nature of property because of their familiarity with the living law of the many medieval forms of divided dominium, which predisposed them to identify the power relations between the multiple “owners” and users.

While the social critics agreed that the relational and coercive nature of property calls for limiting owners’ entitlements, they had sharp disagreements about how significant these limitations had to be. Moderate reformers continued to justify the need for robust property entitlements with natural law arguments about labor or autonomy. For these moderates, the relational structure of property only requires mitigating the negative spillover effects of the exercise of ownership entitlements and balancing the owner’s exclusion rights and the public’s right of access. By contrast, jurists animated by socialist or solidaristic ideas took a more radical approach, arguing that property has a “social function” and that owners, in addition to entitlements, also have positive duties, the scope of which was yet another reason for disagreement among jurists who embraced different variants of the social ideology.

The notion that property also carries a social obligation was doubtlessly an important insight and one that has remained relatively marginal in the Anglo-American property tradition. Yet it also presented its proponents with an apparently intractable challenge. Unless given clear and specific content, the social obligation would remain a hopelessly vague nod to the new methodological and ideological ideas, with hardly any practical effect. However, if given precise content, it would clash with the aspiration to a robust core of proprietary entitlements, an aspiration that had remained powerful – in both lay and expert circles – despite the new ideas. This tension became especially critical as the twentieth century progressed and the threat of fascism and authoritarianism loomed large. In the face of authoritarianism, the aspiration to a robust, autonomy-enhancing core of entitlements acquired new meaning and urgency, and so did the fear that the social function could be used to justify an assault on individual rights in service of the objectives of the fascist state.

It was in response to this challenge that the social jurists began to explore the ramifications of what I consider the most intriguing insight at their disposal: the idea that the shape and scope of the owner’s entitlements vary depending on the resource owned. For once, this insight was truly Roman. The Roman “law of things” was not the only acknowledgment in antiquity of the resource-specific nature of property. The Roman jurists also made available a variety of standardized bundles of ownership entitlements tailored to the unique characteristics of specific resources, such as public land (ager publicus) or provincial land, that is, land located in the provinces of the Roman Empire. Both types of land were of critical economic and geo-political importance, and ownership entitlements were shaped to promote the relevant interests. For instance, in Roman Egypt, the Roman government, seeking to promote and monitor the production of agricultural commodities for the Mediterranean market, shaped property entitlements with varying degrees of security and different fiscal benefits, depending on the type of land (royal land, private land, or temple land) and on the geographical location.Footnote ³⁹ Similarly, the ius Italicum, a special set of entitlements for provincial land that was fictionally declared to be Italian soil, was used to reward and “Romanize” municipalities in the provinces.Footnote ⁴⁰

The Roman “law of things,” and the more general resource-specific nature of Roman property, provided the social jurists with the key to the puzzle. The social obligation was neither a vague and empty notion nor a far-reaching authoritarian inroad into the owner’s sphere of autonomy. Rather, its content and scope depended on the “thing” owned. The obligations and limits it entailed could be broader for resources that implicated a fundamental public interest, such as mines, water, and artistic and historic treasures; accurately geared toward goals of access and productivity for critical economic resources, such as agrarian land or industrial property; fine-grained for necessary resources such as rental housing; and minimal for rental commercial real estate. The Italian jurist Salvatore Pugliatti (1903–1976) nicely captured this focus on resources in the image of property as a tree with a trunk and many branches.Footnote ⁴¹ The trunk comprised a core of entitlements that characterize all forms of ownership, most importantly, the right to use resources for beneficial purposes. The branches described the variously shaped sets of entitlements conferred to owners of specific resources such as urban housing, agricultural land, or mineral resources.

Another powerful Roman law-inspired tool of the social jurists, largely forgotten today but incendiary in the nineteenth century, was the lex agraria (agrarian law). In the imaginary of the nineteenth-century elites, steeped in the classics, the lex agraria was associated with the land reform enacted by the mythical Gracchi brothers, the populist political leaders who sought to address the problems of Rome’s poor. Over time, much of the public land (ager publicus), which the Roman state assigned to private users for cultivation, had come to be held by a relatively small number of large landholders who produced for the growing urban market. In 133 bc, Tiberius Gracchus, who, a year earlier, had been elected to the office of tribune of the people (tribunus plebis), proposed a law that sought to improve the situation of the impoverished small farmers by distributing to the poor and the landless any public lands possessed by private holders in excess of a specified cap. The Gracchan agrarian law was limited in scope, applying exclusively to public lands, and many of its details are uncertain and hotly debated.Footnote ⁴² Yet, its retrieval in the eighteenth, nineteenth, and twentieth centuries fueled extreme passions. It galvanized political radicals, providing them with a comprehensive blueprint for land reform, and it terrified property owners and the liberal elites who raised the specter of massive confiscations and redistribution of private lands accompanied by ruthless violence.Footnote ⁴³

These two competing concepts of property, absolute dominium and the relational, variable, and resource-specific idea of property proposed by the critics, have dominated property debates for the last two centuries. The relation between the two is more complicated than a simple pendulum-swing, where dominium dominates for most of the nineteenth century, dies out toward the end of the century, and is replaced by the relational and variable concept of property. Rather, the two have coexisted uneasily. The law of property as we know it today is the product of the constant tension, and attempts at creative mediation, between these two concepts of property.

Why Was the Idea of Dominium so Powerful?

The social critics crafted a concept of relational property, consisting of varying entitlements and duties that, if interpreted expansively and fully implemented, had the potential to make social and economic relations more equitable and democratic. Yet, for all the zeal of their attack on absolute dominium, the social critics were never able to undermine its powerful and long-lasting appeal. The Romanist-bourgeois idea of dominium as an absolute and exclusive right that promotes individuals’ autonomy anchors their personhood and provides the foundation for a liberal polity shaped the social imaginary of the next two centuries. Obviously, on the ground and in the courts, the outcomes of conflicts over access to and use of privately owned resources were often very different than the concept of absolute dominium would allow. And yet this is not a reason to discount the relevance of the jurists’ persistent and enthusiastic call for a robust modern concept of dominium throughout the nineteenth century, well into the twentieth century, and even up to this day. This pervasive and lasting influence has long puzzled property scholars. If “absolute” property is impossible in any organized society, how to explain this unrealistic and aspirational idea of dominium? This book argues that key to the success of this robust Roman-inspired idea of property was the combination of material interests and a powerful nexus of ideological beliefs. The need of rising capitalist elites to extract profit played an obvious role in entrenching modern dominium, but dominium would hardly have had such a profound and enduring impact had the jurists not articulated and promoted a wide-ranging set of arguments justifying dominium that appealed to ideologically diverse segments of the politically active elites.

Historians have long argued that the revival of Romanist absolute dominium in Europe was a response to the interests of the rising commercial and manufacturing bourgeoisie and paved the way for capitalism. Perry Anderson captured the gist of this view in one crisp sentence: “The classical past awoke again within the feudal present to assist the arrival of the capitalist future, both unimaginably more distant and strangely nearer to it.”Footnote ⁴⁴ This view certainly overstates the influence of Romanist property, making the rise of capitalism appear almost inevitable. And yet, the reinvention of dominium in nineteenth-century continental Europe did play a critical, albeit indirect, role in the rise of capitalist economies.Footnote ⁴⁵ The law of modern dominium conceptualized in legal terms the emergent capitalist “social-property relations,” that is, the relations by which owners of capital extract surplus value from direct producers. While the shift toward capitalist social-property relations was primarily determined by class conflict on the ground between landlords and laborers and by the changing nature and role of the state, the doctrines of modern Romanist property law structured, legitimated, and further solidified the emergent capitalist class structure. This is not to say that the relationship between modern Romanist dominium, the conscious aims of the entrepreneurial bourgeoisie, and the effective establishment of capitalism was direct or immediate; rather, it was slow and indirect and varied dramatically by region.

In France, despite the fact that the revolution and the Napoleonic state had ushered in modern absolute dominium and created many of the formal preconditions for capitalist development, the rise of an entrepreneurial bourgeoisie and of industrial capitalism was delayed. The persistence of large rentier landownership alongside small peasant ownership – and the continued importance of the bureaucratic state dominated by a powerful class of office-holders – freed proprietors, peasants, and the state from the relentless competitive pressure to intensify labor productivity, which is typical of capitalism. Large owners and the state continued to extract profits through rents and taxation, that is, through the use of political rather than economic levers. Only well into the nineteenth century – with the growing economic competition with England, state development policies, and the unification of the internal market – did the legal doctrines of modern dominium actually start facilitating capitalist growth. The same is true for Germany, where, despite reforms aimed at abolishing feudal divided dominium and establishing “absolute” dominium, the continued hegemony of the landed aristocracy, the political backwardness of the liberal bourgeoisie, and the power of the absolutist bureaucratic state delayed the rise of capitalism. A truly capitalist economy only developed with Bismarck’s “revolution from above.” Similarly, virtually all the republics of Latin America passed civil codes that enshrined absolute dominium, but the agrarian and extractive economy remained pre-capitalist, with large landowners maximizing their profits by increasing semi-feudal servile exactions on the peasantry, well into the twentieth century.

Despite its delayed and circuitous relation to capitalist interests and growth, the newly reinvented Romanist absolute dominium rapidly gained traction and became such a powerful and persistent concept because jurists and legislatures justified it with a variety of arguments that appealed to broad, ideologically diverse segments of the intellectual and political elite. In other words, the ideological foundations of Romanist-bourgeois dominium are richer and more diverse than is often assumed and cannot be reduced to a thin liberal individualism or a simplistic bourgeois ethos. In the prefaces to their treatises and monographs, jurists were eager to rise above the technical, disciplinary discourse of property and to engage in larger public conversations about the role of property in society. They presented modern Romanist absolute dominium as intimately related to two cardinal ideas of modernity: freedom and equality. Neither relation was without complications. Modern dominium was constitutive of freedom because it placed an external thing at the disposal of an individual, as a means to set and pursue her or his ends. And yet, by laying a duty not to disturb the owner on all others, property also encroached on others’ freedom, imposing on all others a duty of noninterference. The relationship between dominium and equality was even more complicated, since inequalities in property ownership could corrode the very fabric of modern political equality.

As the architects of modern dominium sought to clarify its relation to freedom and explain away the tensions with equality, their audience and their temporal horizon extended beyond their own time. When they dealt with the technicalities of the science of property law, the jurists engaged their contemporary fellow professional jurists in Europe and beyond; but, when they discussed the relation between property, freedom, and equality, they spoke to the citizens of modernity, stretching into the future. The prefaces and forewords to the jurists’ treatises and textbooks were suffused with a high-sounding, optimistic liberal universalism. Addressing present and future “moderns,” the jurists justified Romanist dominium with a variety of arguments, old and new and not necessarily consistent or coherent. For instance, in eighteenth-century France, arguments drawn from the discipline of political economy, then relatively new, emphasized the relation between property, social wealth, and civic virtue and lured a vast audience. Robust and exclusive property rights, political economists argued, encouraged owners to make autonomous and socially responsible choices about what uses of their resources would bolster and expand the nation’s economy.Footnote ⁴⁶ Similarly, in the German principalities of the early nineteenth century, Romanist absolute dominium dovetailed with the teachings of cameralism, the science of public administration that sought to increase the prince’s income, promote economic development, and create a prosperous and well-ordered society.Footnote ⁴⁷

Arguments about democratic equality were also marshalled in support of modern dominium. Modern dominium, its egalitarian supporters asserted, would lead to greater equality of autonomy because it freed all politically equal citizens and owners from the many restraints that the Old Regime had imposed for the benefit of the seigneurial elite and the Church, giving them equal autonomy to manage their property. Those making these egalitarian and democratic arguments were well aware that, in the long run, modern Romanist dominium might facilitate the accumulation of private wealth, resulting in the corrosion of political equality and the establishment of new political oligarchies. Even so, their optimistic egalitarian liberalism made them believe that the free circulation of property in the market would effectively prevent excessive wealth inequalities; liberal egalitarians also hoped that the quality of the social bond, that is, citizens’ sentiment of fraternity and moral equality, would serve as a corrective to economic inequality. The idea of equality of this optimistic liberalism was imaginary and thin: equality was understood not so much as a measure of the distribution of wealth but rather as a relation, namely that between like human beings, autonomous individuals, and equal citizens. And yet it proved powerful because it was deeply germane to the spirit of the post-revolutionary generation in France and throughout the continent.Footnote ⁴⁸

Of course, not all was novel in the jurists’ writings. Alongside these newly reworked ideas, the jurists marshalled arguments from the medieval and early modern natural law tradition that appealed to classical liberals. For example, they justified dominium by invoking a strictly formal conception of freedom, devoid of content and independent of context or circumstance. In this view, dominium is the positive law affirmation of a pre-political, natural right of property, based on the universal law of freedom, a right to have a thing at one’s disposal in pursuing one’s own ends, consistent with the freedom of others. To be sure, those who held this view had to explain away the tension between property and the universal law of freedom, to explain how the first occupant of a thing can constrain the freedom of all others by imposing upon them an obligation to stay away from the thing that they would not otherwise have had. Generations of scholars, from the medieval canonists to the Spanish Scholastics, to Christian Wolff and Immanuel Kant had struggled with this tension. The jurists rehashed the arguments of these natural law writers about a “permissive” principle within the law of nature that could authorize an act that would otherwise be forbidden. Echoing their sources, the jurists claimed that this “permissive natural law” authorized the owner to put all others under an obligation of noninterference which they would not otherwise have.Footnote ⁴⁹

As skilled rhetoricians – conversant with the different discourses of modernity that coexisted in eighteenth- and nineteenth-century France, Germany, Italy, and South America – the jurists effectively built a broad and long-lasting consensus on the desirability of modern, absolute dominium. Key to the success of Romanist-bourgeois property was also the jurists’ ability to present themselves as the true scientists of property.Footnote ⁵⁰ The aspiration to scientific inquiry – to habits of mind conducive to an organized, universally valid, and testable body of knowledge about phenomena – was a pervasive one in nineteenth-century Europe. The high status of science was largely the result of a political and social transformation that was happening, at different paces, throughout Europe: the gradual rise to power of a commercially active bourgeoisie and a technically trained, bureaucratic personnel who valued science, expertise, and talent. Obviously, the specific sciences held in high esteem varied by time and place. For instance, physiology and Hippocratic medicine were highly influential in late eighteenth- and early nineteenth-century France, while romantic Naturphilosophie and Leibnizian geometry held sway in Germany.Footnote ⁵¹ And toward the end of the nineteenth century, references to organic biology punctuated law professors’ monographs throughout the continent. Regardless of the type of science they looked up to, jurists sought to transfer methodologies and practices from the study of the natural world into the study of legal institutions.

The aspiration to scientific modes of inquiry permeated the study of law in general, but it surfaced in property law debates in particularly striking terms because of property law’s inherent distributive and public dimension. Property law governed the distribution of resources that were key to nineteenth-century economies, such as land and water. The development of large-scale commercial agriculture and industrial manufacturing involved major conflicts over access and use between owners, non-owners, and the larger surrounding community, as well as conflicts between existing uses and new, highly profitable uses of property. The jurists claimed the ability to manage these conflicts through a science that, like geometry, mathematics, or physics, had its own internal principles and requirements. By characterizing property law as a science, nineteenth-century property scholars insulated property from overtly political discussion. On the ground, courts and lawyers almost systematically resolved these distributive conflicts in favor of owners rather than users or possessors and in favor of dynamic, productive uses of property rather than long-established communal uses. Yet, they always pretended that they were merely applying the doctrines of an age-old property science.

Were property scholars consciously strategic in their appeals to science? Obviously, the jurists were not engaging in actual science, in truly disinterested and unprejudiced inquiry. Rather, their property science was a form of scientism, a prejudiced analysis that assumes the most appropriate way of investigating property and indeed the outcomes. Nevertheless, the idea of a consciously strategic and disingenuous appropriation of scientific methods does not fully capture the Romanists’ unique combination of sincere scholarly devotion to their discipline and instinctive adherence to a larger discourse of science, visible across disciplines as well as in the spirit of the age.

Romanist-Bourgeois Property as a Professional Project

The jurists’ appropriation of scientific methods and practices not only sheds light on the deep and lasting influence of the idea of dominium, but it also opens up new vistas on the jurists as a professional group, replete with very mundane interests and internal power struggles. Modernizing the law of property was a complex effort that required different types of specialized knowledge. Political economists, agronomists, political theorists, and moral philosophers were among the experts who sought to play a role in the modernization of property. Shaping a modern property law was not only a matter of fine legal craftsmanship; it also required a grasp of institutional realities and a sensitivity to political and economic needs. Further, modern property had to appeal to the larger intellectual and ideological movements of the time. Professors of private law and Roman law could plausibly claim to have familiarity with all these dimensions. They were technicians with a solid command of the law and intellectuals steeped in the larger conversations of the moment. Their prestigious academic jobs and, often, judicial appointments brought them close to the levers of institutional and political power without putting them on the forefront of partisan politics. The prolific property law literature penned by the jurists provides a unique perspective on how academic jurists navigated these multiple roles.

The ambition to be the movers and shakers who would effectively redesign a critical institution like property was not the jurists’ only motivation. Jurists also yearned for intellectual recognition by their academic colleagues and aspired to play the role of the gatekeepers of legal academia that was and is granted to those who have achieved intellectual prestige. Law, as with all academic disciplines, was the locus of a struggle for “academic capital,” a contest to determine the criteria of legitimate membership and hierarchy in the field.Footnote ⁵² Declarations about property theory and doctrine were also social strategies through which professional power was affirmed and claimed. Leadership of the most influential specialized law journals, chairs, appointments, and promotions were very much present in the mind of property scholars as they wrote their textbooks and monographs and intervened in property debates.

The antagonism between the champions of absolute dominium and the advocates of the “social function” of property intersected in complex ways with larger power struggles within law schools. Undeniably relevant was the friction between the legal disciplines that could stake a claim to property expertise, the prestigious and time-honored disciplines of private law and Roman law, and “younger,” but burgeoning, disciplines, such as landlord/tenant law, labor law, agrarian law, and mining law. Property had traditionally been seen as the central pillar of the private law system, the core of modern civil codes, and, therefore, the exclusive domain of scholars of private law and Roman law. However, between the 1850s and the 1920s, rapid industrialization, the agrarian crisis, the social question, and World War I dramatically transformed property, throwing into sharp relief the relevance of “special” legislation and the salience of larger public interests in property matters. These transformations made property pertinent to the newer disciplines. The Romanists, whose power and status in law faculties was becoming precarious for a variety of reasons, were particularly eager to defend their position in the field of property.

Also relevant to the debate about the scope and shape of modern property was the conflict between the “mandarins” of private law, the established and methodologically more conservative scholars who were the gatekeepers of legal academia and controlled promotions, and the up-and-coming, more iconoclastic property writers. The vitriole of the attacks and counterattacks launched by the proponents of absolute dominium and their social critics is surprising for contemporary readers and can only be understood against the background of this larger struggle for reputation. Jurists who aspired to emerge as innovators who would shatter the dogmas of property law challenged their colleagues who sought the prestige of solid, timeless property craftsmanship. No less relevant was the feud between the “locals,” that is, jurists who were fully immersed in their own domestic academic scene, and the “cosmopolitans,” who sought to build cross-national alliances to promote their ideas about property. For instance, many of the French or Italian jurists who identified with the movement known as “legal socialism” felt marginalized in their own national academies and restlessly promoted their political agenda and their work abroad.

A Global Network of Jurists

Dominium and social property, the two central ideas of the Romanist-bourgeois property culture, were neither a product of Europe conceived as a homogenous legal space, with its own values and traditions, nor a product of any territorially defined legal space. Rather, dominium and social property were both shaped by a loose network of jurists, located both in continental Europe as well as in its informal periphery, who shared a training based on Roman law, a commitment to modernization, and common methodological beliefs. For the jurists who were part of this network, Europe was a cultural reference point, a reference used strategically by some and critically by others. Many jurists in the “core” countries of Europe, that is, France, Germany, Italy, and the Netherlands, saw modern dominium as the most distinctive product of “European modernity” and the embodiment of the unique values of modern European liberalism. These jurists’ efforts to export their theories of modern dominium to the formerly colonial peripheries fit into a larger imperial design to disseminate the political and legal culture of European liberal capitalism. Their imperial endeavor was successful, and modern Romanist dominium found its way into the civil codes of virtually all newly independent nations from Haiti (1825), to Chile (1855), to Mexico (1870), and Egypt (1949).

However, outside of Europe, jurists’ references to European legal modernity and its concept of property were far more ambiguous. To be sure, throughout the nineteenth century, a brand of Europhile cultural modernity was dominant among peripheral elites, from Latin America to the Caribbean to Egypt. Many of the most influential political and legal thinkers believed that Europe was the locus of modern law and progress and that its peripheries inevitably lagged behind and ought to chase this distant European modernity. And yet, particularly, but not exclusively, in Latin America, critical and denunciatory references to European modern liberal legalism were far from uncommon. A cadre of Latin American jurists reversed the imperial gaze, judging and criticizing the empty promises of Europhile legal modernity. This critique of European modernity and its concept of property was rooted in the belief that an alternative, non-European modernity, based on norms of republicanism and democracy, was taking shape in Spanish America.Footnote ⁵³ The champions of this authentic, republican Latin American modernity shared an optimistic liberalism similar to the one that decades earlier had animated broad segments of the European elite in the wake of the French Revolution. Energized by this optimism, radical liberal jurists, throughout Latin America, believed that this authentic modernity was not merely about safeguarding abstract political and personal rights of privileged individuals. Rather, they viewed modernity as a broader and inclusive political project supported by the popular masses and infused with both a democratic challenge and assertions of social and economic rights. These jurists went well beyond launching a passionate attack on modern dominium, and they sought to dramatically expand the core doctrines of “social property,” such as abuse of rights and the promotion of the lex agraria.

Modern dominium and “social property” moved across legal and geographical boundaries through mechanisms of colonial imposition and informal power but also through the work of “cultural intermediaries.”Footnote ⁵⁴ Cosmopolitan intellectuals and energetic academic impresarios, these cultural intermediaries operated at the boundaries between different legal cultures and established connections, creating competing global networks of jurists who shared political sympathies, methodological commitments, and, often, professional power ambitions. Some of these “cultural intermediaries” were highly prominent legal academics who acquired worldwide notoriety. Léon Duguit (1859–1928), a professor of constitutional law and the most visible and active proponent of the idea of property’s “social function,” epitomizes the entrepreneurial and successful global networker. A native of Bourdeaux, Duguit rose swiftly to academic prominence, gaining both high intellectual reputation and considerable professional power, eventually becoming the dean of the law faculty at the University of Bordeaux. In a series of lectures delivered at the University of Buenos Aires, Duguit captured the gist of his theory of property in a catch line that made an impression around the globe: the opposition between the old propriété-droit (property-as-right) and the new propriété-fonction (property-as-function). Duguit was a cosmopolitan academic promoter with a restless schedule of international academic travel that took him from Buenos Aires, to Bucharest, to New York, to Cairo. A skillful cultural intermediary, Duguit bridged the divisions between different cultural and legal traditions. He flattered his audiences in the periphery with remarks about a universalist and inclusive modernity and about a shared agenda of legal progress.Footnote ⁵⁵ Over decades of travels, Duguit established connections with other anti-formalist jurists who shared an interest in sociology and scientific positivism and successfully disseminated his propriété-fonction around the globe.

Among the jurists who expanded and radicalized Duguit’s theory about property’s fonction sociale was another cosmopolitan cultural intermediary, Francesco Cosentini. A native of Torino, Italy, Cosentini was an eclectic legal intellectual who restlessly promoted his “socialist” agenda among widely diverse academic cohorts around the world. He remained a marginal figure in the prolific Italian socialismo giuridico movement but achieved notoriety in Belgium, Switzerland, and Latin America. A visiting professor at the National University of Mexico in the late 1920s, Cosentini had the ear of two of the most influential jurists of the law faculty, Francisco H. Ruiz and Ignacio García Téllez, who were also members of the comisión redactora charged with drafting the new Código Civil. Cosentini and Garcia Tellez discussed the idea of a new type of civil code, a codice privato sociale (private social code), vocally advocated by Italian socialist jurists like Enrico Cimbali and Giuseppe Vadalà Papale. The draft code, enacted in 1928, reflected these exchanges; it was an ambitious código privado social that incorporated many of the property doctrines proposed by the social jurists.Footnote ⁵⁶

Graduate students from the periphery also played a critical role as cultural intermediaries. Wang Shije, who obtained his doctorate in law from the University of Paris in 1920, helped make Duguit’s work known in China. Doctor Wang went on to a successful career between academia and government and was eventually instrumental in drafting the Land Expropriation Law of 1928, which was certainly consistent with Duguit’s theory of property, even though not directly influenced by it. Another foreign graduate student in France who was a critical figure in the global “social property” network was Abd al-Razzaq al-Sanhuri. Like most Egyptian law students in France, Sanhuri studied at the University of Lyon where he was part of the circle that gathered around Professor Edouard Lambert, a leading anti-formalist and social critic. Sanhuri was destined for a brilliant academic career in the law faculty of the University of Cairo and in the legislative committee charged with drafting the new Egyptian Civil Code (1949). Sanhuri’s agenda for the Code was to introduce moderate legal reform in the spirit of European social legal thought. Convinced that, in Monarchist Egypt, where the existing social order was founded on land and property laws, social change would be secured primarily through property law, Sanhuri envisioned a law of property that would help increase social solidarity. Accordingly, Sanhuri’s draft Code reflected both propriété-droit and propriété-fonction. Romanist-bourgeois property remained the central pillar of the code, but it was to be qualified with an explicit reference to property’s “social function.”

Property ideas traveled outside of continental Europe via these networks of jurists who shared a similar agenda for property reform and exchanged letters, translated each other’s monographs, and held visiting positions at each other’s universities. European and non-European members of the network presented themselves as equal participants in the project of modernizing property law. Was peer collaboration a mere pretension concealing actual hierarchies of power and prestige, in which non-European jurists occupied a subordinate position? More specifically, was the creation of property knowledge a simple process of diffusion and acceptance, or was there an active reconfiguration of concepts and doctrines by peripheral jurists, a true intercultural constitution of legal knowledge? The answer is, obviously, complicated. The academic profession is a highly stratified one, organized around a plurality of rival principles of hierarchization, and a quick glance at preambles, forewords, letters, and conference programs reveals ubiquitous traces of non-European jurists’ asymmetric and unequal position. Yet, in important ways, the creation of modern property was a coproduction.

French, German, and Italian property concepts were often creatively reshaped and expanded by jurists and legislatures outside of Europe and eventually brought back to bear on European debates. The theory of the “social function” of property is a case in point. Duguit’s theory of the social function was narrowly circumscribed. The Bordeaux jurist cautiously framed his theory as descriptive and was reluctant to explicitly draw normative conclusions. For Duguit, the observation of property’s new nature evinced the need for doctrines that would qualify and limit the owner’s entitlements but not the need for more radical redistributive measures. It was the Latin American members of the network who dramatically expanded Duguit’s theory, giving it an openly normative flavor. In their treatises, as well as in the debates of the legislative committees they joined, Chilean, Brazilian, and Mexican jurists explicitly linked the “social function” to broader arguments about a new economic structure that secures to each individual what is necessary for his or her material security and human flourishing. This expanded notion of the “social function” justified an ambitious redistributive agenda that included the expropriation of large landed estates, uncultivated lands, and unproductive factories. From Latin America, this expansive reformulation of the “social function” theory traveled back to Europe in the second half of the twentieth century. It now informs the work of scholars and activists engaged in a variety of reform projects, from the “urban commons” to the movement for equitable access to water utilities.

Creativity also marked the introduction of the “social function” theory in Egypt. While Sanhuri’s initial formulation of the theory was a moderate’s attempt to introduce mild social reforms acceptable to the monarchist regime, in the aftermath of the Nasserite Revolution of 1952, the “social function” became the vehicle for introducing the principles of Arab Socialism into Egyptian property law. In this new socialist reading, the “social function” enabled a redistributive agenda that included greater equality in the distribution of income as well as the encouragement and protection of small ownership. Sanhuri read the “social function” in conjunction with Islamic principles and proposed highly original solutions in various areas, including housing law. One of the most original innovations was the new regime regulating multi-apartment buildings, which the revolutionary regime considered critical to the goals of alleviating the housing crisis in overcrowded cities and increasing homeownership among the middle-class. Informed by the idea of “social function” and by the principles of al-uluww wal-sufl, the new regime encouraged cooperation between owners of the lower floor and the upper floors, imposing on each specific obligations with regard to maintenance, and established building management committees based on egalitarian and democratic principles.