Res Nullius and Occupation in Roman and International Law 36 University of Missouri at Kansas City Law Review 1968

About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

36 U. Mo. Kan. City L. Rev. 274 (1968)
Res Nullius and Occupation in Roman and International Law

handle is hein.journals/umkc36 and id is 280 raw text is: Res Nullius and Occupation in
Roman and International Law
F. S. RUDDY*
Res Nullius is literally property of no one, and as such implies a
concept of property and ownership. The term is a Roman law concept,
and hence the starting point in tracing res nullius is the Roman concept
of property.
The genesis of Roman property concepts is by no means clear. Seneca
argued to a primordal state of nature where property rights were non-
existent because unnecessary. It was only with the falling away of the
natural state through the increase in human vice and avarice that prop-
erty rights were fashioned.' In his selfishness to possess the things of
the world exclusively, man drew increasingly away from the state of
nature and fictionalized a social organization which recognized human
avarice, in the form of individual ownership, and protected it. This view
is more or less consistent with Savigny's aphorism that property is
founded on adverse possession ripened by prescription.'2
In recent times the origin of Roman private property rights has be-
come more a question of the chicken or the egg. For example, the
eminent Pandectist Mommsen held that Roman private property derived
from land originally held in common,' while Fustel de Coulanges on the
other hand viewed private property rights as originating in the family
and radiating thence.4
Justinian in speaking of modes of acquiring property, treats the titles
of natural law as first because they are the older law, having been
instituted by nature at the first origin of mankind, whereas civil laws
first came into existence when states began to be founded, magistrates to
be created, and laws to be written.5 In a panoramic sense Justinian is
right, but in the legal sense, i.e., as we use the term law today, the
process is otherwise. As Professor Jolowicz observed: No doubt grab-
bing (occupation) came before mancipation, but in another sense it is
* Professor, Selwyn College, Cambridge University, Cambridge, England.
R. W. & A. J. CARLYLE, A HISTORY OF MEDIEVAL POLITICAL THOUGHT IN THE
WEST Cp. 2 (1963).
2 Quoted in H. S. MAINE, THE ANCIENT LAW notes to Cp. viii (1912).
3 Quoted in Fustel de Coulanges, Religious Bases of Property, in PRIMITIVE AND
ANCIENT LEGAL INSTITUTIONS 105 (A. KOCOUREK & J. WIGMORE eds. 1915).
4 Id. at 100.
5 INSTITUTES OF JUSTINIAN bk. II, tit. I at 11 (J. B. MOYLE transl. 1955).
274