They are all rather old concepts,
actually. I forget exactly which part of
the Torah it is (perhaps Leviticus?), but the Old Testament includes some
rather strict provisions requiring landowners to leave “extras” in their fields
for the poor, including a dramatic every seventh-year rest, in which no farming
at all was permitted. And the Romans too
differentiated between the concepts of ownership, possession, and use of land:
The word dominium is
primarily a legal term, corresponding to a fundamental concept in Roman law. In that system it refer essentially to an
absolute and exclusive right of ownership and control. Property in this sense was, in Roman legal
usage and practice, sharply distinguished from other modes in which land or
some other object might be accessible to one individual or group rather than to
another. Such individuals or groups
might, for instance, have acquired and so might enjoy the ‘usufruct’ (usufructus) of a piece of property; or
they might enjoy the possession or occupation (possessio) of it. No such
situation, however, altered or modified the owner’s exclusive dominium in, or
over, the property.
When, in the late eleventh
and increasingly in the twelfth century, the study of Roman law revived and
expanded in Latin Christendom, the concept of dominium became both crucial and
problematic. In a feudal society, of
which the leading characteristic was the holding of lands by lords (domini), lordship was an absolutely
basic fact of social life: dominium
was therefore an essential concept in the juristic articulation of the social
order. The problem was that feudal
relationships did not allow for any such absolute and exclusive right as Roman dominium implied. The vassal or subtenant was regarded as having
something more than mere usufruct or bar possession. He too was in his way a dominus, and to allow for this it was necessary to devise ways in
which dominium itself could be divided.
It was for this reason that the jurists of the twelfth century developed
the notion of dominium utile, a form of
lordship which still preserved in the hands of the overlord the ultimate dominium directum (the ‘eminent domain’
as it come to be called in some legal traditions) while assuring to his vassal
a tenure that was a great deal more than precarious—dependent on the lord’s
will or pleasure. (Lordship, Kingship, and Empire, J.H. Burns, 18-19.)
My parents actually have the use
of easement—a narrow strip of land along the edge of (and technically on) a
neighbor’s property, which allows them access to an otherwise inaccessible
road. On the flip side, I do know people
who have, unfortunately, lost property through eminent domain laws in favor of
the state. In both cases, however, as
for the Israelites, the Romans, and the medieval jurists, distinctions emerge
out of a concern to balance private property rights with the common good—never an
easy and apparently a perpetual historical task, but one well worth engaging
in.
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