The second chapter focuses on a key and highly contested figure of European legal modernity: Robert Joseph Pothier. A visionary whose legal creativity was wholly projected into the future for some, and a lucid and pragmatic seventeenth-century mind for others, Pothier, working with preexisting materials facilitated the conceptual leap from medieval divided dominium to modern property as unitary and robust dominium.

The aspirations to autonomy, independence, and equality that had so effectively boosted the discourse of modern dominium were never realized. The rationalization and expansion of the economy generated enormous wealth inequalities between the propertied classes and the large class of propertyless wage laborers. The latter experienced oppression rather than autonomy, material dependence rather than the independence, and exclusion instead of equality. The “social question” prompted social reformers of all stripes to interrogate the role of property law (in the emergent industrial world. The new political and intellectual climate ushered in by the “social question” transformed the ideological discourse about property, the concerns of the jurists, and, to an extent, the doctrines of law of property. Alternative conceptualizations of property focused on social relations, redistribution and cooperation, started appearing in the writings of philosophers, economists and pamphleteers. And a new generation of jurists, interested in functionalist and consequence-based approach to property, gained power in law faculties around Europe, Latin America and beyond.

The chapter charts the emersion of a powerful rhetorical attack on fedual property in revolutionary and post-revolutionary France, a powerful combination of critiques that would become one of the standard tropes of the modern property discourse well beyond the boundaries of Europe. To this fabricated negative archetype, French jurists juxtaposed the modern idea of Roman absolute dominium enshrined in the Napoleonic Code. Neither Roman nor absolute, the new law of property was a collection of prexisting doctrines couched in the lnaguage of a hyerbolic individualism.

The nineteenth-century theorists of modern Romanist dominium, the great French treatise writers and the German Romanists, embarked in a quest for coherence, aspiring to develop a body of property law that was both normatively and conceptually coherent. These jurists sought to build an architecture of logically interrelated property doctrines informed by the unifying commitment to maximizing the owner’s freedom of action. Yet, this coherence was illusory. Far from being coherent, modern property was riven with tensions that could hardly be disguised. This chapter examines the jurists’ attempts to deal with four doctrines that threatened to strain the coherence of the property system: emphyteusis, possession, the limits on ownership and common ownership. While ultimately unsuccessful, these attempts are nonetheless worth exploring. For one thing, these failed attempts opened rifts in the apparently solid edifice of modern dominium, rifts that, a couple of decades later, the social critics will be quick to exploit. Most importantly, the jurists’ efforts to ease these tensions throw into sharp relief a diversity of ideological and methodological views that hardly surfaces in the nineteenth-century property treatises.

This chapter explores the slow and uneven property reform path ushered in by the short-lived liberal reformers that gathered around Baron von Stein. After Stein’s resignation, the discourse of property modernization was shortlived and the reconcpetualization of property was carried on by two leading,moderately conservative Roman law scholars who had been close to Stein’s cicle: Barthold Georg Niehbur and Friedrich Karl von Savigny. Animated by sincere scholarly devotion, and yet not shy to use Roman law and agrarian history to support their political agenda, Neihbur built a powerful narrative equating the liberation of the German peasantry to the struggle of the dispossessed Roman free peasant. Simultaneously, Savigny outlined a new Romanist architecture for the law of property designed to enable and protect the full mastery of the owner’s will over a physical thing.

This chapter charts the emergence of an anti-feudal disocurse of property modernization and the newly indpendent republics of Latin America. While the tones and the arguments of this anti-feudal discourse echoed the assault on feudal property in the metropole, the intellectual sources and the material interests of the detractors of feudalism in Latin America were far more complex. The liberal creole elites drew upon a vast and diverse political-economy literature that went beyond the obvious canonical authors of the French Enlightenment and included semi-peripheral regional traditions, such as the Neapolitan Enlightenment, that more closely resonated with their specific concerns about underdevelopment and metropolitan-satellite relations. Committed to agricultural improvement but also reluctant to undo the semi-feudal relations of production that allowed the landed elite to extract profit from the peasantry, jurists crafted a system that combined feudal property and modern dominium.

The Romanist-bourgeois property tradition that eased the advance of liberal capitalism in nineteenth-century Europe remained dominant throughout the twentieth century, despite its obvious shortcomings. Surprisingly, its influence seems only to be growing, even among the most sophisticated property theorists in the United States. Several of the centerpieces of Romanist-bourgeois property have made a spectacular comeback. Henry Smith and Thomas Merrill have repurposed the Roman conceptual architecture of property centered on dominium and the right to exclude. While the right to exclude by no means captures every relevant attribute of the institution of property, giving individuals the right to exclude others from particular resources is a cost-effective way of organizing the management and control of resources in society and one that also promotes a variety of other ends, including, willingness to share resources.744 Novel theories of abuse of rights continue to resurface and to spark controversy. Larissa Katz has recently proposed a principle of abuse of rights focused on owners’ reasons for action.745 Because owners’ power to make authoritative decisions about the use of resources inevitably threatens the autonomy interests of others, the exercise of this authority over others is legitimate only if owners have can present a worthwhile agenda for the resource. Critics have noted the limited use of this account of abuse of property rights that merely scrutinizes the owners’ reasons and have proposed a more capacious, anti-domination principle of abuse of rights.746 The social function of property has also experienced a similar revival with Gregory Alexander, who, in a foundational essay, courageously implied a broad social obligation norm in US property law, one that is not limited to curbing owners’ powers but goes as far as foregrounding the place of nonowners and requiring redistributive intervention.747 Alexander’s piece proved highly influential, sparking a rich conversation about the merits and limits of the social function of property in property circles in the United States.

The first chapter examines the reasons that the led nineteenth-century liberal jurists who sought to modernize property to turn to Roman antiquity for inspiration. In Roman law, jurists found a powerful idea of legal scientific method, a professional role model, a large inventory of ostensibly apolitical doctrines produced by jurists of a distant and revered age.

The Introduction lays out the context, the motives, and the main features of the reinvention of Roman property in nineteenth-century Europe. It introduces the global professional network of elite liberal jurists who embarked in this ambitious project and explores the reasons of their attraction to Roman propert and their committment to changing ideas of modernization. Further the introduction examines the conceptual structre of modern dominium.

In the hundred years since Hohfeld published his two “Fundamental Legal Conceptions” articles, the “bundle-of-rights” view of property associated with his work has come to enjoy the status of conventional wisdom in American legal scholarship.1 Seen as a corrective to lay conceptions and a predecessor “Blackstonian” view of property as the “sole and despotic dominion” of an “owner” over a thing,2 the central insight of Hohfeldian analysis is standardly taken to be that property is not a single “thing” but rather a “bundle of rights” with respect to things and persons.3 In recent years, however, this Hohfeldian view has come under increasing attack by critics calling to replace the bundle-of-rights picture with a return to lay or neo-Blackstonian conceptions of property, as the “right to a thing,” “thing-ownership,” or, simply, “the law of things.”4 Yet what precisely is at stake in this dispute has remained somewhat nebulous.