Property

Introduction In most textbooks on Roman law, the treatment of the law of property is divided into four topics, namely (i) the types of ‘things’; (ii) the different modes of acquisition and alienation of ownership of property; (iii) ownership and possession; and finally (iv) limited real rights in property. That this division is based on a certain elegant logic cannot be denied. After all, it is only really possible to understand a branch of private law if one understands the scope of that branch of law, the ways in which it functions in relation to the larger legal order, and the rights operating within it. With that said, although this treatment of the Roman law of property is largely based on the original Roman legal sources, it presents a more ordered and settled picture than is visible in those sources. As modern scholarship increasingly begins to acknowledge that Roman legal thought (with specific reference to their logic and understanding of categories) was not necessarily the same as nineteenth-century German legal thought, these basic structures need to be reassessed. As a starting point, two of the most famous teaching manuals on Roman law, the Institutes of Gaius and those of Justinian, will be re-examined. Although these manuals were produced under different circumstances and for different audiences, it is well known that the compilers of Justinian’s Institutes in the sixth century AD used the second-century manual of Gaius as their blueprint. Since both of these works were designed to be introductory teaching manuals setting out the basics of the law, an examination of their content should provide a clearer understanding of the structure of this branch of private law.