ROMAN LAW 1

CONCEPTS OF ROMAN LAW 1

“TYPES” OF IUS 1
NATION VS STATE 1
NATIONAL LAW 2
INTERNATIONAL LAW 2
SUPRANATIONAL LAW 2
UNIVERSAL POWER 3
HARMONIZATION AND UNIFICATION OF LAW 3
LEGAL ORDER VS LEGAL SYSTEM 4
HISTORY OF ROMAN LAW 4
PILLARS OF ROMAN LAW 5
THE CORPUS IURIS CIVILIS 5
THE FIRST PATHS OF ROMAN LAW (END OF THE ROMAN EMPIRE) 6
FRAGMENTATION IN THE MIDDLE AGES 8
DEMOCRACY OF ANCIENTS AND DEMOCRACY OF MODERNS 9
ARISTOTLE VS POLYBIUS 9
CICERO 10
ANCIENT AND MODERN LIBERTY 11
LIBERTY ACCORDING TO DIFFERENT PEOPLE 12
PRIVATE LAW 14
THE GERMAN CIVIL CODE 14
LAW OF THE PERSON 15
LAW OF THINGS 18
CONTRACT LAW 19

ROMAN LAW
CONCEPTS OF ROMAN LAW
“TYPES” OF IUS
Ius Civile + Ius Gentium = Praetorian Law (they were together according to Papinian)
• Ius Civile = law of the citizens of a particular city (in this case of Rome)
• Ius Gentium = supranational and natural law common to all human beings (citizens and
foreigners) elaborated by Romans, valid also for the foreigners (legal system, ≠ legal order) →
has a personal and historical universal vocation:
o ≠ public/private international law → exists independently from international agreements
o ≠ ancient international commercial law (lex mercatoria) → it’s not the lex mercatoria of the
Mediterranean area, it’s a new creation of the Roman thinking
o Example = sale contracts laws:
▪ Roman Civil Law: mancipatio (very formal act with solemn words and gestures)
▪ Greek Law: πραξις (less formal, exchange of goods with written acts to testify the sale)
▪ Ius Gentium: emptio venditio (contract of sale, agreement based on bilateral
obligations and on the principle of bona fide = good faith)
• Ius Honorarium (made by praetors)
• Natural law = concerned with everything, not just people (it is not the modern naturalism, the
community is very important here)
NATION VS STATE
NATION STATE
historical-political notion that came after the fall
idea born before the Westphalia Peace of the Roman Empire, with the Westphalia
Peace
ideological tool that justifies the State → gives
political legal form
the State a fundamental ideological root
 refers to a group of people united by origin, refers to a society united by laws and
history, culture, ethnicity, language regulations
independent political entity with fixed
socio-cultural entity with no fixed territory geographical boundaries (rex in regno suo est
imperator)
cannot be created consciously can be created consciously
can exist without sovereignty cannot exist without sovereignty
more stable not as stable
Nation + State = needed to give the State a fundamental ideological tool
Ex: Why is Italy not a nation? Italy, before the unification, was a very diverse territory with different
customs and languages (the Italian language comes from the dialect of Tuscany - the same thing
for the Romans that made Latin, a regional language, the language of all)
NATIONAL LAW
The idea of National power was born after the fragmentation of the Roman Empire and the attempt at
a new Roman Empire at the beginning of the Middle Age (renovation imperii with Carlus Magnus) →
principle of rex in regno suo est imperator (≠ supranational power → “king is emperor in his kingdom”)
→ the concept of territory is really important, it’s an element of the exercise of power
National law (sovereignty, power of the Nation State) or domestic law = laws that exist “within” a
particular nation (State) → recognized as the expression of the State itself (since it emanates from
the local authority = the law making institution); created at the national/federal level by sovereign
nations → sovereign nation rules its own lands, protects its borders, has a national government that
creates laws and governs the people
National power = sum of all resources available to a nation in the pursuit of national objectives
(Assessing the national power of political entities was already important during the Classical antiquity,
the Middle Ages, the Renaissance and today);
INTERNATIONAL LAW
International law (law outside the nation/between nations) = agreement between Nation States, starts
with a strong idea of statutory law → embodied in a treaty/formed by customs recognized by all nations
→ you can cross the border of the nation with a statutory agreement; they are created by treaties
between/among sovereign nations and operate in 2 ways:
1. reciprocal between 2/more nations [ex: treaty on extradition of criminals]
2. by creating an international agency of governance [ex: United Nations (UN), European Union
(EU)]
SUPRANATIONAL LAW
Supranational law = form of international law, based on the limitation of the rights of sovereign
nations between one another → distinguished from public International law, because nations explicitly
submit their right to make judicial decisions by treaty to a common tribunal [ex: United Nations Security
Council + subordinate organizations = International Court of Justice → only globally accepted
supranational tribunals]
The models for supranational law are the Roman ius gentium (3rd cent BC) and the middle ages’ ius
commune (12/13th cent AD with the birth of universities): the biggest idea of EU is to create a ius
commune europeum, but instead there is still national law (even in the criminal field) → in EU there
are more legal orders than legal systems
WHY CANNOT EU “THINK SUPRANATIONAL”?
EU law = example of supranational legal framework: here sovereign nations unite their authority
through a system of courts and political institutions → they can enforce legal norms against/for member
states/citizens (≠ public international law); European Coal and Steel Community (ECSC) = 1st
supranational organization
EU cannot think supranational because it’s still looking at the reality of national power and sovereignty:
until it can think of itself as a territory/Nation State agreement it’s impossible to create unity and for it
to become a supranational state → there are more national jurisdictions than a unique jurisdiction
because EU is the union of different states each with their own sovereignty and jurisdiction → to build
a community we need to change from the national jurisdictions to the supranational one to live in
this world of globalization
EU’s biggest problem is that everyone does what is better for their nation: the national idea is not a
reality, it’s only an ideology that brings with itself egoism → there are only national superpowers and
different kinds of national laws → some important civil codes are:
• French Civil Code (1804, also called Napoleon Code) = code of private property, expression
of 1st Industrial Revolution
• German Civil Code (January 1st 1900, BGB) = code of the will/juridical acts for legal effect,
expression of the new liberal society of the 2nd Industrial Revolution
• Manifest of the Communist Party (Marx and Engels) = not a civil code but a fundamental
political document → criticism towards the liberalism of private law (expression of capitalism)
UNIVERSAL POWER
In the Middle Ages the term universal power (imperium) referred to the Holy Roman Emperor and
the Pope: both wanted dominium mundi (world dominion) = political and spiritual supremacy; the
universal powers continued into the early 19th century until the Napoleonic Wars; the reshaping of
Europe meant the effective end of the Empire (even if the pope still has power in the contemporary
world, although it has its territorial limits confined to the Vatican)
IMPERIAL IDEA vs IMPERIALISTIC POLICY
IMPERIAL IDEA IMPERIALISTIC POLICY
Happens in the Roman Empire Happens with National Superpowers
supranational power: law common to all national superpowers (China, US, Russia): single
humans national law imposed on other Nation States
Imperial idea = idea of inclusion and diversity,
Imperialistic idea = Nation State impose their
enriching their culture with the others’ culture to others, colonialism
expansion of the power but to include all the expansion of the Nation’s power outside of its
people to the citizenship original borders → autochthonous people treated as
slaves
inclusive citizenship = they want to make all exclusive model citizenship = it’s > difficult to
people romans → being romans = universal idea obtain citizenship
Ius Gentium = law common to all human people National Law (even with common economy, culture
and technology)
peace and good relationships > war hard to reach an agreement: war > good
relationships

HARMONIZATION AND UNIFICATION OF LAW

HARMONIZATION UNIFICATION
from bottom to top: no power from the top from top to bottom: common rule is imposed
imposes a rule
customary law = ethical values of a community, statutory law = most important source of law
the reality of the society today, legislation, static, formal law
goal: law common to all human people based on goal: law created from a supranational power
traditions and common elements
jurists king
legal science, knowledge political power
 democratic relationship between people and authoritarian way to build law (comes in the
legal science → more difficult process, but it suits Middle Ages and Nation States)
a globalized world
EXAMPLE OF HARMONIZATION EXAMPLE OF UNIFICATION
- Confarreatio (cum farreo) = aristocratic act - Before Rome, if there was a murder
of marriage, formal, from customary law between 2 different gentes, the
- Usus = to live together, not formal, union consequence was war
in fact, peasant model from another - With Rome, Numa Pompilius made a
culture statutory law (Lex Numae) = unique rule
Both models can be used by citizens and are part to solve the disputes [Si quis hominem
of Ius Civile liberum dolo sciens morti duit, paricidas
esto → an intentional killer is to be
processed as a patricide]
EU aim = unified type of law, common rule to be applied to all EU countries (supranational type of
law) → the problem was to choose the language to express it (≠ English or French) + that each judge
(Italian, French, german, etc) applies the law based on his interpretation → because of this it’s
impossible to impose a law from the top, they had to fix a common law and asked each country to
harmonize their own legislation to it
LEGAL ORDER vs LEGAL SYSTEM
• Legal order (exclusive model) = legal idea used to express the legal structure of a single nation
state → consequence of the nation state, needs a sovereignty and territory, it’s the law applied
to this territory → it can only work in a specific territory
o set and method of organization of the sources of law explained for the first time by the
scholar Renée David
o capability to build the universal content of law, something open to be used as universal
content everywhere and for everybody
• Legal system (inclusive model) = cultural legal model, doesn’t recognize borders
o set of institutions and norms regulating the structure and the rules of a stable group of men
and it is the translation of the nation state idea
David explained the legal system by creating the idea of legal families → the father is Roman Law
and the main one is the Romano/Germanic family:
1. Romano Germanic Family ( the whole continental world besides soviet union and west europe)
2. Common Law Family (UK model)
3. Islamic Law Family
CIVIL CODE: it derivates from the Romano-Germanic family and it is divided in French Civil Code
(influenced the whole U.S., especially Louisiana) and German Civil Code (followed by China); the Civil
Law system is based on Roman Law (written 98% in Latin + a small part in Greek) → it influenced the
legal structure and language of all legal systems (even Common Law) → Latin influences all legal
terminology (useful for harmonization of law)

HISTORY OF ROMAN LAW

What is Roman Law? Roman Law ≠ national law + Roman Empire ≠ Nation: Romans only existed
after the foundation of Rome (April 21st 753 BC) → in the center of Italy there wasn’t an unified ethnical
community (mix of Etruscans, Umbrians, Latin communities), each single community had political
structures, religious ideas, customary laws (mores, from mos, moris), economical instruments to live
→ complexity of law → they had some common principles [ex: polytheistic religion with a God in
chief (Jupiter/Zeus)] but diversity was far bigger
River Tibur = physical distinction between communities (easiest places to cross = Tibur Islands): in
Quirinal and Esquilin hill there were already independent communities of people with their own
language and political organization [Sabinians, Latins] = gentes (gens, gentis) → they wanted to
unify the different political communities in a new important political reality = Rome
Rome wasn’t a Nation [political model born in France based on territory, people and sovereignty on
territory and borders]: Res Publica means Res Populi = people aren’t an element of the Nation, they
are fundamental, they are what makes the Empire → we have an universal power and an universal
law
Rome had a political structure based on the model of the cities (≠ states = political form of the
modernity): it can be called a cities empire: Jean Jacques Rousseau (The Social Contract) says that
in a modern Nation State only representative democracy is possible (oligarchy), in a city only direct
democracy → today, only an assembly of representatives of the people is possible (How did the
Romans have direct democracy in a territory bigger than Europe?)
Roman Empire = inclusive method for communities of people [ex: even before the 1st Christian
Emperor, when they met new communities with other religions, they didn’t impose their own God, they
added that religion to the Pantheon] → the crisis came when they met the 1st monotheistic religion
(Hebraism, their God can’t stay with others)
PILLARS OF ROMAN LAW
• Civil Code: codified in the 6th cent AD (529/534) with Justinian (Corpus Iuris Civilis)
• importance of legislation
• legal rule comes from scientific reasoning
• language = latin
• repubblica utilita (public welfare)
At first in Rome every culture/community had its own laws: there was a great effort of harmonization
to build a general and common law → ius civile = law common to all citizens (≠ territory), manages
the relationship between human people; today interpretation of law is out of the law, but in Roman Law
interpretation has a productive role, it moves the law itself and generates new content; it’s important
to distinguish 3 legal figures:
• praetor = political magistrate elected every year by the people, exercises legislature, fixes law
that should be used in litigations
• judge = common person chosen by the parties in the litigation to decide on the judgement
• jurist = legal scientist who has deep knowledge of laws in general → he never judges, offer
solutions and helps those who are in litigations
Ius Gentium (1st cent AD) is often translated with “Law of Nations” but actually means Law common
to all human beings” → refers to a universal community, it’s not private/public international
law/commercial law → it doesn’t need an agreement between nations to exist, it’s for everyone (citizens
and foreigners)
THE CORPUS IURIS CIVILIS
For the codification of law, 2 pillars are fundamental:
• potestas = power of the emperor to make law
• auctoritas = authority of the legal science (they can understand the law)
Codification of the laws made under Justinian, of the new imperium Constantinus (Euro-Asian
empire), divided in 3 parts:
1. Codex (Code) = imperial constitutions and legislations (12 books that contain laws previous to
Justinian) → 80% comes from the ancient Ius Gentium
2. Digesta (50 books, most important part) = fragments of books of roman jurists (Ulpian,
Pomponius; there was huge respect for them = reverentia auctorum) → permutation of content
 from books that became legislation of the emperor (from democratic to authoritarian), while
recognizing the “copyright” (he cited the legal scientists like Ulpianus with inscritiones)
a. in the 1st page of the Digesta we can see the reverentia auctorum: he uses a fragment
from Ulpian and says “I am the most powerful person in the Empire but I recognize
the role of the classical legal tradition” (importance of honesty)
3. Institutiones = elementary elements of the law, 4 books written by 2 professors given to the
emperor and put in the codification
4. Novellae = not really part of the codification, part of new legislation made by Justinian (in Greek
+ 2 versions in Latin = Authenticum and Epitme Iuliani)
Permutatio legum = transformation of legal content from the expression of a legal science, material
coming from scientific content that becomes law of the emperor (statutory law) → he changes the
political nature of this legal material, removing its democratic nature → monopolistic attitude to
create law (similar to the French Nation State in the 19th cent → takes all the power to create law on
his shoulders) → codification is a political choice
The unity in the Corpus is a political one: law = expression of the power of the emperor → the power
of the law is of the emperor; the Corpus is an example of harmonization and unification of law:
it’s a law created from bottom to top (in a democratic way) that becomes top to bottom (expression of
the power of the emperor)
THE FIRST PATHS OF ROMAN LAW (end of the Roman Empire)
Diocletian divided the Roman Empire in 2 with his reform (eastern part and western part), each with
an Augustus and a Ceasar (subordinate to the 1st, will take his place eventually): the spread of Roman
Law in Europe took two different paths, the eastern path and the western path
EASTERN PATH
Roman Empire in that period = euroasian empire (it’s wrong to have an Eurocentric mentality, but it’s
different from reality → only an ideology) → Romans had an universal mentality: the law didn’t fix the
domination of one population on another one, but was used to create a new space where different
languages/ethnical communities/religions could live peacefully → even if there were problems [ex:
slavery] there wasn’t an imperialistic idea but an imperial idea → not a nation but a multiethnic reality
In the East the most important language was Greek (not Latin!) → the codification was translated in
Greek and Syrian, which played a big role in the penetration of the code respectively in Russia and
Arabia → after the fall of the Roman Empire in Constantinople (15th cent AD) the Roman legal tradition
was preserved in Russia (Zar in Russian and Kaisar in Greek mean Caesar) → they took and
reinterpreted concepts from Roman legal traditions to mold them for their ideologies → it was a military
wall against the destruction of Europe from the nomads invasion
The Roman legal tradition first met the Slavish one with 2 monks (Cyrillus and Methodius) who went
to the Eastern part of Europe and met the new cultures → the slavish tradition didn’t have a written
language, so they invented it (the phonetic structure of written Slavish is called Cirillicus); after the
Russian revolution and the creation of URSS (20th cent), soviet legal scientists adapted these
concepts to their goals (creation of a new private law): they used the Roman word property in a public
and common sense (not private as in the western concept) → they molded the roman concept for their
interests
After the Chinese Communist Revolution (1948), Chinese jurists went to Moscow to learn the Soviet
Union law (socialistic way of a new legal thinking) → the regime of Mao took the Chinese path to the
Roman law → a new Chinese code came in force January 1st 2021: China is part of the Civil/Roman
Law legal system; China, Russia, Latin America, North Africa, and Eurasia all use the Civil Law system
(all with differences, but with common principles [ex: bona fide, contract of sale, obligation, property])
→ there is a passage between different “Romes” (Rome-Constantinople-Moscow-Beijing)
WESTERN PATH
The western Roman Empire fell in the 4th cent AD, but in reality the idea of this fall is an Eurocentric
idea → it’s still there after the fall: a mixture of barbaric communities (Visigoths, Longboards, etc)
came in contact with the high legal culture of Rome and tried to create the Visigotorum statutory law
= Codex Euricianus (476/479) contained laws that governed both Visigoths and Romans (legal
codification that came before Justinian)
The Justinian codification arrived to Rome, but was lost for 3/4 cents: 1 copy was probably in Ravenna
(capital for some time), then to Rome and to Amalfi → the content of the Corpus officially reappeared
with 2 important manuscripts:
1. Littera Fiorentina (“Code of Florence”) = found at the end of 6th cent/beginning of the 7th cent
→ it was a copy of Justinian’s codification and it’s the oldest manuscript we have of it (many
think it’s the 1st copy that Justinian sent to the Pope)
2. Littera Bononiensis (“Code of Bologna”) = copy of the 8th cent, more recent manuscript of the
Corpus → important because Bologna is where the Renaissance of legal science started: in
the 11th cent Irnerius (master of rhetoric and liberal arts) found the manuscript
Irnerius’ work started the Renaissance of Roman legal tradition in Europe: it created curiosity in the
new generation → in Bologna he taught law (stadium iuri) to 4 students (Ugo, Martino, Jacopo and
Bulgaro) in exchange for payment and so created a community of knowledge = universitas → place
of freedom and liberty of knowledge, idea of a community, the new generation can learn and take
knowledge from the old generations → they debated the law (ius controversum)
There isn’t an authoritarian transmission of knowledge (like priests, religious teachers and kings in
the Middle Ages → top to bottom knowledge) but a democratic one (bottom to top knowledge → each
generation has the right to find its path to reality) → each generation has the fundamental right to seek
the truth and to criticize the idola fori [ex: Eurocentric perspective of teaching]
The free space of a city was fundamental for the birth of the university institution: the process could
never have happened in Rome with the Pope or in Paris with the king → it’s a revolutionary idea, that
today faces risks because of programs that only want to fuel capitalism (studies of business > classical
studies); the birth of universities caused a big revolution, useful for the nations in order to build their
national law → during the 12th/13th cents every Nation State started to transmit it divided in 2 models:
• National law of France, Spain, Portugal, etc.
• Common Roman Law of the Middle Ages (law common to all Europe) that took all the content
of the Corpus to create a new Ius Gentium (supranational law with an universal vocation) →
separated from religions/nationalities, contained concepts such as contract, family, property,
human person in the law → many of these ideas were codified in the Justinian code and became
a pillar of a new common law in Europe after the Middle Ages
It was the Renaissance of a new Ius Commune: young people came from all over Europe to study
this new legal science (and not the national statutory law!) → the content was the same as in the
Roman Ius Gentium, but the difference stands in what it interprets (Ius Gentium interpreted reality,
Common Roman Law interpreted books/words) → the society/people and problems were very
different in the Middle Ages, the legal science tried to fix these problems through a dictionary →
problems were collected in a conceptual plot (practical problems [ex: commercial relations] taken
back to theorical ideas already existing in Justinian’s code [ex: concepts of property and sale contract])
In the 17th/18th cent the common role of Latin became evident: in this period there was a strong
movement of codification → these concepts were translated to modern languages (German, Italian,
French, Spanish, etc.) with the technique of the mirror/calc = the word in Latin is directly translated
in the other language with the same word [ex: persona → persona, person, etc.; obligatio →
obbligazione, obligation, obligaciòn, obrigação] → this transformation didn’t change the conceptual plot
and expresses the same concept, we can affirm there already is an universal language → the
Austrian codification could be applied in the Milan region, but this method could never possibly work in
China (too different language to do the exact translation from Latin to Chinese)
Thanks to the mirror technique, even if the legal science is translated to national languages there is
no fragmentation → jurists from different nations between the system have no difficulty
communicating with each other (they speak the same legal language) → there are different national
laws but a common legal science
FRAGMENTATION IN THE MIDDLE AGES
With the Middle Ages there was a political/territorial/legal fragmentation that marked the collapse of
the Roman empire → Calasso (historian) explained the dialectic singularity-community/
fragmentation-unity:
iura singularia (plurality, complexity) = ius commune = law common to all human beings,
different national laws (statutory) → idea universal (juridical experience that developed in
of the Nation State vs empire continental Europe from the tenth century up to the
nineteenth-century codifications)
iurisdictiones = national jurisdictions (the imperium = singular power in the hands of the emperor
word is plural) (the word is singular)
The universal power collapsed, even though some tried to renew it (Carlus Magnus in the 9th cent with
the Holy Roman Empire) → some powerful kings wanted to become emperors (national jurisdiction
vs utopian idea to renew the Roman empire), but in reality this is period when Nation States are
formed: the king expresses his own nation’s power (this is why territory and borders are really
important)
Ius commune of the Middle Ages (XII-XVII) = different from Roman universal law, it’s not open and
the only way to develop it is through interpretation (> importance of legal science) → there are different
kinds of interpretation in the Middle Ages:
1. Legal glossators (from glossa = technique of interpretation) = the legal science can interpret
the codification only word by word → they can only explain the words inside the codification,
they write it in the same page with the codification; they worked on the interpretation of the
Corpus Iuris Civilis
• in the Roman interpretation it’s inside the law (tool to create new law), but now it’s inside
the material of the written law (words literally written next to each other)
2. Commentary (XIV-XV cents) = mos italicus (Italian customary technique of interpretation) and
mos gallicus (French) → study of law became important all over Europe, many went to France
and Italy (scholars started to write their own books of interpretation of law) (Baldo degli Ubaldi,
Cino da Pistoia, Bartolomeo da Sassoferrato)
3. Legal Humanism (XVI cent) = new sensibility for history and centrality of men in the world →
time of the Renaissance in Europe, re-birth of society (return of classical principles → started to
understand Greek writing thanks to the Arab translations) (Averroè and Avicenna)
4. School of Natural Law (XVII-XVIII cents) = start of a new systematic legal structure of private
law that could be used forever through the use of logic (utopistic thinking, law mirrors society
and changes with it) (Grotius, Pufendorf, Thomasius, Wolf)
Canonic Law = method of codification used under Justinian and revived in the Middle Ages: all the
religious content from Christianity was brought into the law through the interpretation by glossators
and commentary) → individualistic relationship God-Christians became a tool for the control of the
people (also from a political point of view) → > importance to the role and will of the individual (≠ role
of community but of individuals), this changed the legal mentality and the relationship individual-State
→ the Church used the legal instruments to create a common law (ius civile + ius canonicum =
utrumque ius (l’uno e l'altro diritto)
New legal systematic structure of private law (idea that was supposed to be used forever, but it was
an utopistic idea because law changes with society) with 4 pillars:
1. Homo/persona/subject of law (individualistic view) → in the Middle Ages the single man is the
subject of law, today also other realities (company law, association law, etc)
2. Res/things/juridical goods → abstract things cannot be considered as concrete things, but
they can be considered juridical goods → for Romans there was no difference between juridical
and non-juridical goods (sea, air, etc. = abstract/common concepts), today law tells the reality
of things and abstract things can be considered property
3. Typicity of human acts/will/juridical acts = a lawful act/expression of will intended to have
legal consequences → act where the juridical effects go in the same direction of the will
4. Typicity of relations/juridical relations = all the relation between humans (governed by private
law) and subject of law (existing juridical content of the relation) → deals with rights and duties
of parties

DEMOCRACY OF ANCIENTS AND DEMOCRACY OF MODERNS

There are 4 main concepts fundamental to understand the western legal path = democracy, liberty
(of the people, not individual), equality, brotherhood (related to solidarity/fides → idea of natural social
community) → there are differences between the ancient Greek democracy and the modern one,
history is linked to the idea of democracy (cit. Luciano Canfora, Democracy, History of an Ideology
→ we can change our perspective of democracy if we look at it throughout history) → in Europe it’s a
fundamental principle, but the European one is a representative democracy (≠ direct like the Roman
Republic → there are too many people!)
DEMOCRACY OF MODERNS DEMOCRACY OF ANCIENTS
indirect/representative direct
people don’t vote the representatives, but
people vote their representatives in the Assembly the statutory law, the president, or the
chief of government
idea: it’s impossible to create a direct democracy in
the dimension of a Nation State (too many citizens)
In Europe today it’s encoded in constitutions and idea: κρατος of the δεμος (power of the
international treaties → individual people don’t play an people)
important role in the European policy (democracy
deficit)
Italy today has 3 legacies of direct democracy = petition, referendum, law with popular initiative

ARISTOTLE VS POLYBIUS
Democracy ≠ Republic: Italy is a democratic republic, but it’s possible to have one without the other;
in the ancient world there were 2 political models:
• Greek model = humanistic model of Aristotle (relativism in judging good and bad) → in La
Politica he analyzes over 150 forms of government to produce a classification
- Constitution means the same as government
form of government degeneration
- Not states but πολεις (cities) monarchy tyranny
- It’s not the form of government that’s important, aristocracy oligarchy
but its goal → it has to govern in the interest of πολιτεια
all, degenerates into being for personal interests (Constitutional democracy
- Democracy = worst form of government → many Government)
people (the poorest) go against the other “classes”
- Πολιτεια = best form of government, of the middle class, based on law (used for socio-
political stability)
• Roman model = political model (Republic, public law idea of the power) → Polybius (scholar
that came to Rome with an Hellenistic culture and background, wrote in Greek The Histories;
 believes that all forms of government are linked in an
ἀνακύκλωσις = cycle → he has a Greek monarchy

perspective)
oclocracy tyranny
- The reason for Rome’s success is the mixed form
of government (that will influence Montesquieu’s
The Spirit of the Laws) → the Republic is divided in
3 parts in the exercise of power (they all work for democracy aristocracy

the interest of Rome):

▪ Monarchy: Imperium (king/consuls) = only oligarchy

power with universal vocation, can be for life

or temporary
▪ Aristocracy: Senate
▪ Democracy: Plebeian Council (assembly of the people)
- this political structure expresses equality and equilibrium → it’s what abled Rome to
avoid the ἀνακύκλωσις
Polybius’ model tried to apply the Greek model to the complexity of the Roman Republic’s reality → he
forgot 3 important elements (pillars of the Republic!):
1. the importance of the conflict between patricians and plebeians (motor engine for the Roman
Constitution and Republic)
2. moral power expressed by the censor (there’s no difference between moralities and law)
3. veto power (negative power, power to say no) in the hands of the tribunes (plebs’ magistrates)
In modern legal thinking law is order while disorder is fact (revolution and conflict is out of the law),
in Rome conflict, order and disorder stay inside the law → law solves conflicts, which are
fundamental for the creation of the Constitution → conflicts are necessary to reach equilibrium and
equality
CICERO
Cicero (one of the most important thinkers of the 1st cent BC in Rome) wrote De Republica =
description of the Roman Republic → in book 2.1.2 he talked about Cato the Censor (important
politician and citizen of the 2nd cent BC that knew well Aristotle’s doctrine, wrote the Origines) and
analyzed the Greek and Roman models:
• Greek model = one man, one city [ex: Minos in Creta] → each city has its founder (Minos in
Creta, Lycurgus in Sparta and Theseus in Athens → monarchy, aristocracy and democracy)
and the political structure is achieved through statutory law
• Roman model (≠ perspective from Polybius) = based on time, customary law and experience
+ the civitas = fundamental element of modernization and development of the human culture
o Rome doesn’t have a single founder but many founders → based on the will of many,
collective effort (product of the people and their customs)
o It wasn’t founded in one generation, the political structure doesn’t come from the political
idea of a mythical ruler (structured during time, in a long period)
o Conflict (patricians vs plebeians) is fundamental for the constitutional development of the
Republica → concept explainable with two important terms:
▪ Usus (experience) = through experience they find legal tools that are useful to the
citizens and the community
▪ Diuturnitas (“age after age”, “time after time”) = Rome isn’t the scientific result of a
theory, it’s the result of the history of conflicts → the public law is customary (≠ statutory)
o The past is important because it means experience, it helps to face problems (practical
experience > theoretical ideas [ex: Montesquieu’s theory of the division of power])
o Usually one of the 3 powers always prevails in a single part of history, but the best form of
government is when they are all together
Cicero also talked about Scipio the African (important citizen who destroyed Cartago) in book 1.25.39
(he put his ideas in Scipio’s mouth):
• Res publica (“public thing”) = property of the people (res populi)
• Distinguishes between democracy (part of the trio monarchy-aristocracy-democracy) and
republic (contains all 3, everything is equal, the goal is always to govern in everyone’s interest)
• The Republic has no relativism and doubts (≠ Aristotle’s theory), it’s the best choice for the
citizens, the res publica is structured on the people
• Scipio defines the populus with some important principles: Coetus multitudinis iuris consensu
et utilitatis communione sociatus (“convergenza di una moltitudine fondata sulla condivisione
del diritto e sulla comunanza di interessi”) = the people have the will/desire to stay together as
people → society = voluntary association
o Communione utilitatis = people stay together because they have a common advantage
o Iuris consensu has 2 different meanings = subjective (law is subject before the agreement)
and objective (law is object of the agreement)
• The protagonist is the populus: the form of government can change, but the path should be the
interest of the people (Res publica remains in single forms of government) → for Scipio’s res
populi is:
o Agreement, association of the members through their free will
o To share the law, the common law for all of them
o The common target, the utility for everyone (utilitatis communio)
In book 1.26.41-42 Cicero explains why the Roman Republic is better: the people and the political
community come before the city/buildings/streets → every res publica is property of the people and it
must be governed by some deliberative body (government = institution that can make decision and
take responsibility for them) and in 2nd place by a deliberative power (one/some/all citizens):
• rex and regnum (from regere) = bottom to top → to hold something from below, sustaining it
• βασιλευς (Greek monarch) = top to bottom → looks down on people
Cicero concludes that the res publica can have different types of government, but the best one is
where the 3 elements are together in equilibrium (with a magistrate/senate/public assembly of the
people) → in Greek πολεις the matter was more about who had the power rather than what kind of
government they had, in Rome the government is not so important as the political protagonist (=
civitas, the people) → concrete reality of human beings who decide to stay together to reach a common
goal → inclusive model and voluntary principle (everyone can become a Roman citizen → most
important model of citizenship of ancient times)

ANCIENT AND MODERN LIBERTY

Liberty = one of the main concepts of contemporary democracy → we can distinguish between two
models of liberty:
• communitarian/political liberty (Roman) = liberty of the republic/people from tyranny/kingship
→ concept revived also in the modern world (Jean Jacques Rousseau talks about the Roman
Republic structure as a model to be followed)
• individual liberty (modern) = new principle brought by the French Revolution
With the French Revolution (1789) the new motto Liberté, Égalité, Fraternité appeared → it
represented the new society the French people wanted to build:
• Liberté = new society of free men, built with the idea of liberty (leads to the abolition of slavery
in all French territories)
• Égalité = idea of equality → equal citizenship is fundamental in the new French Republic
• Fraternité = idea of brotherhood (consequence of the equality between humans, relations as a
family of brothers and sisters
These 3 fundamental principles are all linked together: a group of free men build a society where all
citizens are equal, this leads to the strong principle of solidarity → the French Revolution wanted to
destroy the Ancien Régime (society of inequality, with absence of solidarity, structured with many
social differences) → the king had a very strong power (top to bottom structure that brought a lot of
injustice, unfairness and suffering), justified by the idea that the monarch was the human person
chosen by God to govern the society (Le loi c’est moi = sovereignty in the hands of the king and not
of the people); because of this the French put a strong effort to make a revolution (≠ only a separation
like plebeians and patricians did in Rome) → it was the only way to solve the situation
The 18th/20th century were the centuries of the revolutions: there were Nation State structures that
were supposed to calm the conflict between capitalism and proletarians, but didn’t manage to do it →
the consequence was the revolution
LIBERTY ACCORDING TO DIFFERENT PEOPLE
BENJAMIN CONSTANT (The Liberty of Ancients Compared with that of Moderns, 1819)
Benjamin Constant (Swiss-French political activist, writer on political theory and religion, Republican
that took part in the French Revolution) compared the liberty of the Ancients with the one of the
Moderns: in the ancient one the participation of free men is possible (important because everyone
contributes to the Republic) only because of slavery → hard work is left to the slaves and this allows
the free citizens to participate in the direct democracy (there is political/communitarian liberty, but not
individual liberty!)
ANCIENTS MODERNS
type of
direct democracy representative democracy
democracy
liberty = to share social power among
the citizens (Libertas Rei Publicae = liberty = to have private benefits
what is
liberty of the Republic → no kingship or guaranteed
liberty?
tyranny)
liberty means collective freedom liberty means individualistic liberty
slavery does not exist anymore: people
does
based on slavery = key to participate in have to work in order to live, they have
slavery
political life given up a small part of their liberty to
exist?
abolish slavery
complete subjection of the individual to
every single person has the right to do
individual the authority of the group → he is nearly
something freely without asking
vs group always sovereign in public affairs but a
permission
slave in all his private relations
political entities = big Nation States
political entities = cities constantly at war
political where the individual is almost
with each other (necessary for their
entities insignificant (bigger the State, smaller the
security and independence)
individual’s political importance)
main commerce, work, etc. → love for
activity of participation in politics (constant individual independence, supplies their
the dialogue with political authorities needs, satisfies their desires (no primary
individual contact with political authorities)
refers to political liberty as freedom from the impositions of the king (liberté, égalité,
Constant’s fraternité) → we have lost the meaning of liberty as responsibility of each citizen
opinion to realize the res publica as res populi [But the individual does not live alone,
freedom must be considered within the community, not only as individual rights]
KARL MARX
Karl Marx (19th cent) affirms that the capitalistic society is
divided in 2 classes:
• Capitalists (business owners): organize the process and
own the means of production (factories, tools, raw
materials) → they’re entitled to all profits and take
advantage of the surplus value generated by the extra
unpaid work
• Workers/proletariat (much larger class): don’t own/have any claim to the means of production,
the finished products they create or the profits generated from sales → they work for a money
wage, need work to survive and are exploited
Marx affirms that slavery still exists, it only changed its appearance and took a new name in modern
society: in ancient times there was the idea of property on humans, now the workers are underpaid
• the free contract of work is a legal instrument of this new modern slavery → workers are free
only in theory, they use their freedom to work as slaves in the hands of capitalism
• the contract is supposed to be a free agreement between two people, but is it really free if one
person doesn’t have any other choice but to work this way? → Man is free, but he is only free
to be a slave
The State should grant the equilibrium between these 2 clashing classes, but in history the State has
always taken the side of the capitalist class → with the advent of the mass society (20th cent) and
market-consumers Marx’s idea changed: men’s only purpose is to be potential consumers, they’re a
mass of easily influenceable and predictable people (it’s easy to maximize the profits) → the
individualistic perspective is an advantage to capitalism, consumer = next stage of the worker
IMMANUEL KANT
Immanuel Kant is the father of individual liberty: society is a sum of individuals each with their own
autonomy and liberty (we have lost that communitarian concept) → the space of individual liberty ends
where the liberty of others starts
• society = union of different individual spaces = relationship of liberties
• liberty and property are linked, they are both private and move together (individual liberty =
expression of the space of private property) → together they make the concept of individual
right (and consequently of privacy)
ISAIAH BERLIN
Isaiah Berlin (British philosopher) talks about the 20th cent as an age of relativism: there are positive
liberties [ex: speech, religion, assembly, etc.] and negative liberties (liberty from something [ex:
freedom from the duty to pay taxes])
ULPIAN
Ulpian talks about the concept of natural freedom (4. Ulpianus, Instutes, Book 1):
• In the Ius Gentium there is manumission (dismissal by the hand) = judicial act of the slave’s
owner that can give freedom to him → name of the act comes from the perspective of the owner
• Romans have a mentality of natural freedom of each human being: even if legally there are free
men and slaves, manumission is possible only because of the “open” mentality → he is realistic
(unlike the modern society who affirms slavery doesn’t exist)
• from a natural point of view, the slave is free even when he is a slave from a legal point of view
• This idea came from the observation of (wild) animals = they live without borders, in complete
freedom → men have destroyed this natural/normal freedom space [if they put animals in captivity,
they’ll try to escape to maintain their natural freedom]
LIBERTY TODAY
Our current society is based on substantive slavery: there is no formal slavery that can be defended
in a tribunal, but it still exists and we struggle to maintain our real natural freedom → with the
technology revolution our freedom is disappearing: everyone can find out personal things without
much effort → the virtual dimension is going to be used to control us by sharing all our information in
the net; Equality and Liberty = oxymorons, they’re impossible to realize together (either the countries
follow one direction or the other) → all communities should defend liberty, but not only the
individual one

PRIVATE LAW
There are 4 fundamental concepts of the contemporary (19th cent) private law:
1. Subject of law
2. Object of law
3. Juridical act (Rechtsgeschaft in German)
4. Juridical relation
These are individualistic concepts with a strong abstraction from the reality: they built the legal
system because they can manage all the complexity of the reality of our society [is this legal institution
an object of law, or a juridical relation, etc.?] → this is possible for 2 reasons:
• The strong individualistic perspective of the law = law is seen as an individual affair, but it
isn’t true → history shows that private law can be > important than public/constitutional law, and
some scholars say that the codification of private law is the real constitution
• Abstraction
2 important scholars for private law are:
• Pietro Rescigno = most important Italian private law scholar
• Carl L (?) = believes that the codification of private law is the real Constitution
The consequence of these 4 concepts is that social issues aren’t relevant: it’s difficult to defend
justice, equality, freedom and solidarity in the society, to create fair relationships between people and
to reach equality in different countries → these should be the targets of private law
THE GERMAN CIVIL CODE
Savigny = jurist active in the 1st half of the 19th cent (when Germany wasn’t unified, divided in a lot of
states): in 1821 he affirmed that Germany didn’t need to make a codification → the civil code
expresses the spirit of the people/of a nation (he sees people = nation, not like Romans), Germany
wasn’t a nation yet, so it couldn’t have a Civil Code
In the 2nd part of the 19th cent, the death of Savigny began the movement for codification in Germany
(finally unified and wanted a civil code) after the increasing influence of the Code Napoleon, despite
the German conservative society (they didn’t agree with the values of liberté, égalité, fraternité) → a
new debate on whether Germany should have a codification began
The students of Savigny (Bernard Windscheid and Georg Friedrich Puchta) formed the Pandectistic
School = most important legal school at the time → they studied and taught law as model of
conceptual jurisprudence as codified in the Pandects of Justinian → the German Civil Code is
inspired by this legal thinking
The material of the BGB (Bürgerliches Gesetzbuch = future German Civil Code) is the conceptual plot
of the pandectistic legal science: the 4 pillars of private law are a result of these ideas [the school of
natural law in the Netherlands in the 18th cent had already some kind of distinction and systematical
approach, but this one is the best example]
The German Civil Code is the perfect representation of the 4-pillars structure of the Pandectistic legal
school = the doctrine becomes statutory law, it’s a political choice for the civil code [but civil codes
are always the expression of a specific doctrine that was elaborated before the code → it can be seen
in the Code Napoléon and in the Chinese Constitution of 2021] → there is a dialectic between doctrine,
legal science and civil code
Otto von Gierke criticized the project of the German Civil Code (finished in 1896, enacted January 1st
of 1900): he affirmed it was molded in an individualistic frame that was inconsistent with German
social traditions → he helped to advance the concept of social law (over the classical division of public
law and private law) = the German Civil Code didn’t consider at all the social reality → the strong
critique didn’t lead to any modification of the content of the Code (despite the social mission of the
BGB)
Rudolph von Jhering (another important German scholar) at the beginning of his followed the doctrine
of Puchta and Savigny = aimed at the construction of perfect legal concepts; in the 2nd part of his life
he understood that this kind of doctrine was false: law is there to help the human beings and not to
build abstract systems → concrete systems of legal social relations through legal rules, private
law should have a big role in society
Nazis were against the liberalistic model of the Civil Code: they had a national-socialistic perspective,
but didn’t actually apply this idea because they arrived to the conclusion that law is not useful = they
just didn’t consider the law instead of trying to change it in their favor, and did whatever they wanted
→ with the Third Reich there is no more the need of a legal power, but a factual one
In the last decades, there have been 2 paths to manage the new society of contemporary times:
• Modernization of ancient civil codes (Germany, 2002; France, 2016)
• Realization of new civil codes (The Netherlands, Russia, China, Argentina, Brazil, Puerto Rico)
= they had the German one as a model (with the 4 pillars)
LAW OF THE PERSON
SUBJECT OF LAW
A subject of law is any human person, but each legal order
chooses what qualifies as subject of law: the Italian Constitution
affirms that human dignity is a fundamental pillar of the Italian
Republic (so it should be universal, about all humans in the world),
but art. 3 only mentions citizens and workers when affirming
formal and substantial equality (so it’s not for all human beings,
but only for Italian citizens and workers [what about foreigners and
people who don’t have a job?])
The human nature disappears in the model of the subject of law, as it developed over history:
1. In ancient Rome, persona meant only human person (without any abstraction)
2. In the Middle Ages, the idea of juridical person was born in the legal thinking (becoming a real
estate, a patrimony)
3. In the 2nd cent AD, Pope Innocent the IV (Sinibaldo Fieschi) elaborated the idea of persona
ficta = 1st step in the abstraction of legal thinking
4. In the 18th cent, the school of natural law (Samuel von Pufendorf, Christian Thomasius)
affirmed that persona = both physical and juridical → together they are subiecta iuris (even
more abstract concept, natural and unnatural part of a persona together) → the community of
human people disappears, becoming only a dot in a wide space
5. Savigny affirmed that the subject of law can’t be a human person = from a juridical point of view,
it’s important only if he has capability to have legal relationships and capacity to act
6. Hans Kelsen (father of the normativistic school, the most important today) affirmed that from a
legal point of view, a subject of law has nothing to do with humans: it’s only a relationship with
normative rules
Following this path, AIs, robots and algorithms could become subjects of law: it’s important to fix a
superior principle = the fundamental pillar of private law is the human person and defend it because
the consequences could be disastrous for the society
In the 16th cent, Vultejus affirmed that human ≠ person:
1. Human = general word, it’s a genus/gender, comes from the natural world
2. Person = word of civil law, of iuris civilis, comes from legal thinking
If the word person is used for the human, it means that he has the capability in legal thinking, so he
has the caput civile added to the natural one → the person has 3 dimensions:
1. Freedom 2. Citizen 3. Family
The slaves don’t have any of these: in the legal language, the slave isn’t a person since he lacks this
capability [in Roman law the slave is a persona, so he is a human person] = Vultejus chose the path to
abstraction, seeing only the legal role of the person, not his nature; in the University of Salamanca
there was a big debate on the nature of the natives of Central/South America [could the be considered
legal citizens?] → Francisco de Vitoria affirmed that the natives are human people, so they should be
considered from a legal point of view
The consequence was the start of a path towards the subiecto iuris: the subject
becomes more alone in a wide space, an individual part of a legal relation (no
interest in his natural basis) → the identity of the person can exist only in the
community = since he’s born, the person lives in a community [family,
neighbourhood, school, society, country, world, etc.] → the individual is part of
a circle, he’s not a dot alone in a wide space
THE COMMUNITY IN ROMAN LAW
The role of the person in the Roman perspective is different: it can be described using the
psychanalytic theory of the mirror of Jacques Lacan (France) = if a baby is put in front of a mirror, he
won’t recognize himself and see the image as another real human person, but then he will recognize
it as his unreal reflection and identify it as the image of himself (producing in his brain the capability
to know his identity) → he will be afraid the mirror could steal his identity
• The contemporary human person has lost himself/can’t recognize himself in the reflection
• The ancient human person identifies himself in the eyes of the community = he exists only
because the community recognized him → existence is not biological but social, no one exists alone
but only inside a community/society
In ancient society men existed only because they were together with the others: the worst sanctions
for individuals were the ban (being completely rejected by society) and the damnatio memoriae (being
completely forgotten by society after death); morality and responsibility were also communitarian
[if a single citizen were to offend Jupiter, the problem wouldn’t be only his, but of everyone → they
would all ask Jupiter for forgiveness and ban the citizen]
Names also gave the idea of this concept: out of the 3 names Romans had (praenomen, nomen and
cognomen), the most important was the nomen = gentilicius (concerning the gens), so the name of the
ancient political community they were part of (the gens) → the identity of the Roman person is the
fact that he belongs to a gens; family also had an important role [ex for Cicero]
MORES, HOMINES AND PERSONAE
There are 3 dimensions of the Roman legal thinking about the law of person:
1. mores = most ancient, legal content from the customary law of the ancient communities that
arrived in Rome but was already existing before
a. all human people were considered as part of the community (not as individuals) and had
their own status/legal role = it shows the efficiency of a society [like the Chinese one]
 with a strong social structure [Rome wasn’t an authoritarian society: simply the libertas
wasn’t of the individual, but of the community]
b. the individualistic idea is present, but for the Romans the community comes first (res
publica = res populi), the citizens alone are nothing
2. homo, homines = idea of human and human society as a universal pillar → human person
without distinction of gender
a. common since the beginning of the roman kingship [in homicide, juridical and religious
rules] and from the religious culture already existing
3. persona = new model from the legal science of the Hellenistic period (2nd cent BC) → the word
came from Greek (πρόσωπον = mask, role of an actor in the theatre → not the human person,
but the role he’s playing = to express a role, the human has to be inside)
The concepts of homo and persona became important for 3 ancient arts:
1. philosophy (stoicism) = the theory of the 4 people of Panezio (school of middle stoicism) → the
features of one human person can be expressed in 4 philosophical ways:
a. inequality of nature/different natures [one smaller, bigger, taller, etc.]
b. universal nature = people are different, but they are all human (universal idea of humanitas)
c. role played in life
d. moral person = behavior in society (good or bad)
2. rhetoric = Ermagora di Temno (together with Anassimene and Aristotle) had a big influence on
the rhetorical development of reasoning in Roman culture → he divided each speech and
argumentation in places, topoi and different techniques of persuasion to convince people in
every kind of matter → the persona has a fundamental role = he explains and convinces [the idea
of πρόσωπον in Greek becomes rhetoric in Latin] → argumentation persona
3. grammar = nowadays there are 3 people of verbs (1st person, 2nd person and 3rd person)
Quintus Mucius Scevola mentioned the term persona for the 1st time: from that moment till the Gaius
Institutiones (2nd cent AD, divided private law in 3 parts = person, thing and action), it became the pillar
of Private Law thanks to its meaning = it can unify without destroying the differences of the
customary law and can maintain the universal idea of human → it’s the fundamental concept that
could save both ancient perspectives (customary law and religious law), it means the different roles of
the human person in society and the common human element
The Digest of Justinian cites Gaius (who uses the term person) and Hermogenianus, who uses the
term mankind → law for the human beings, in Latin hominum causa = 2 possible meanings:
• all the law exists only because there is a human society = without humans there isn’t any
kind of law, law is a fundamental element in the relations between men
• the human is the target of the law = law should manage the human society and their relations,
to reach a peaceful one

TO SUMMARIZE:
• contemporary model = abstract and individualistic, with strong abstraction from reality: the
risk is to destroy the link human-person, and have a subject of law that has nothing to do
with the human person [what happened in Nazi times → the law wasn’t human]
• roman model = concrete and commmunitarian: the real human person has a role in the
society, law has a universal perspective and there is no abstraction → the reality is the law
of person, which is for everyone [fathers, free men, slaves, etc.]
LAW OF THINGS
OBJECT OF LAW
In Latin thing is res (Res Publica = community of people); contemporary society thinks they can change
the reality of things, but it’s an utopia [ex: the Nation State sovereignty is strongly linked with
territory, but that is an invention, like it is to consider the sea as part of the territory] because it’s
impossible to change the nature of things [water into ground]
• In contemporary private law, the subject of law decides what could be an object of law →
based on his will, it’s a political choice [ex: a company can make Mars its object of law] → the
subject of law could potentially change the nature of anything: we think (from a legal perspective)
that we can change the nature of reality, but it’s an individualistic and utopistic perspective
o the contemporary subject of law destroys what exists and abuses nature, takes in his
property whatever his wants without any interest in the consequences
• In Roman Law this wasn’t possible = Mars, the Moon, the sea, the air can’t be object of private
abuse → we can’t shape nature, reality shapes the law
o concept of salva rerum substantia = the nature of things has to be preserved, not destroyed
o concept of defending the nascituri = defending the interest of the people that will come after
INSTITUTIONES, BOOK II
There are things that can be considered property of men, others that can’t belong to anyone (the
reality shapes the law!) → there are 4 categories of res/things:
1. common (belonging to all men, universal concept) = the air, running water, the ocean, the sea,
the shores, the river Tiber
2. public (of the Res Publica/all the citizens or of a city/corporation/etc.) = streets → they can’t
belong to an individual, they have to belong to everyone
3. res nullius (belonging to no one, not in property of anyone) = fish in the sea, birds, lions, wolves
→ if someone is capable of catching these things, they become their property and can be used
for their purpose [it’s impossible to think of this concept for Mars, the Moon, the air, etc.]
4. private = already belonging to someone
In contemporary legal thinking, public means belonging to the Nation State (sort of private
property): in the latest years, public properties have been given to private companies to be managed
[ex: Italy gave some streets to private companies; Bolivia sold its potable water to a French Corporation]
PROPERTY IN ROMAN LAW
It’s important to distinguish between ownership (property) and use (possession):
• ownership = the owner of the object can do what he wants with it, whether he chooses to use
it or not → it’s the stronger legal relationship between human persons and objects
• use = the user of the object has them even if it is not his [ex: the owner of a land can’t work it,
so he gives it to another person that can keep the profits]
Property in Roman Law is divided in:
1. collective property
a. collective ownership and collective use [territory that belongs to a community where
the whole community works] → the profits are divided between everyone = ager
gentilicius, that belongs to the gens
b. collective ownership and individual use [territory owned by the community where each
family works on a specific part → each works for themselves, they don’t divide the product
between everyone] → the product of the work is of the workers = ager publicus, which
belongs to all citizens but each citizen/family has the right to take a part of to work it
 2. public property = public ownership and individual use [territory that belongs to all the citizens
of Rome, but each family has the right to take a part of the public ground to work it → in practice,
it works like (b)] → here the means are fundamental (who can produce more profit obtains more
land)
3. private property = individual ownership and individual use → has a small role at the
beginning [will be condemned by Marx] → requested by peasants (they prefer it over the public
one because that one was controlled by the patricians), they gained heredium (by Romulus) =
not exactly private property, small territory given to poor families for survival (only the product
could be sold, not the land itself → it recalls the word heir)
In the liberalistic society this complexity has disappeared: the French Civil Code of 1804 is called the
civil code of private property [while the German one = fundamental pillar of ownership and private
law; Marx understood the ambiguity and affirmed that socialistic societies had to abolish it → the pillar
of the Soviet Union civil code is the public one [complexity disappears in favor of public property], as
well as in China (they have collective property + private property only since 2007)
DEBT, OBLIGATION
Obligation is a fundamental pillar of private law, that plays a big role in financial capitalism: the liberal
society destroyed the concepts of honor/loyalty, transforming them into money (economic relationships
between humans) in a cold society; Savigny in System des Heutigen Römischen Rechts (1840)
affirmed that obligation has 3 fundamental elements:
1. individualistic legal relation of power between creditor and debtor = if someone has an
obligation, he’s free not to pay the object of the obligation, but this will cause a responsibility in
favor of the creditor, who can move charged against his behavior → 3 ideas:
a. Schuld (fault) b. Freiheit (liberty) c. Haftung (responsibility)
2. disequality of relation = consequence of this power: they aren’t in the same position, the
creditor is on top
3. patrimonialistic nature = money-value is fundamental and it’s the only perspective

OBLIGATION in Roman Law: An obligation is a bond of law by which the debtors are reduced
to the necessity of paying something in compliance with the law (Institutiones, book III)

Nowadays there is a disproportion between duty and responsibility: the value of the payment is not
so important, the consequence is always the same → the only reality is the obligation, there isn’t the
idea of the power of the creditor/debtor or the patrimonialistic nature
Often, the two parties are equal [ex: deal between a pater familias and another one = they both have
the potestas over the res and personae in the family, but they are equal between each other] = oportere
(duty to do something) is the obligation between 2 parties on the same position (even if one has to
pay something to the other) → this modern notion of obligation is functional to liberalism
FORMS OF DEPENDENCY
1. slavery of the ancients (principle of natural freedom of slaves)
2. workers in the industrial age (juridical freedom and substantial slavery)
3. debtors in the financial capitalism (people are slaves of debts)
CONTRACT LAW
Latin-calced word from contractus/contrahere (had a natural meaning = contrahere grapes into wine
→ it turned into a legal meaning), common in many languages (Spanish, Italian, English, German =
vertrag) but very different in other parts of the world:
• Greek = συνάλλαγμα (synallagma)
• Russian = договор (dogovor)
 • Chinese = 合同 (hé tong)

We can distinguish 2 concepts:

• agreement (structure) = the role of the will in the agreement with another person, negotiation
between a buyer and a seller
• exchange (function) = no negotiation, the buyer pays the price decided by the seller (no
expressed will)
Grant Gilmore (The Death of Contract) criticized the idea of contract:
• the general idea of contract doesn’t exist in reality: he criticized the very general idea of
contract → he thinks only the typical idea of contract exists [ex: contract of sale, loan, hire,
transport, etc.], the general ideas doesn’t
• the contract is death: in today’s world there’s no freedom of contract because we live in a
capitalistic society and are only consumers → we’re not free to manage the content of the
contract, we have to accept conditions as they are without the possibility of a bargain [which
before was the foundation of the idea of contract]
In Roman law until the 2nd cent BC there were only typical contracts and each agreement had its
own word to be referred to, the idea of general contract didn’t exist and the word had a different meaning
than what we give to it now; Quintus Mucius Scevola (I-III cent) divided the typical contracts in 4
categories (1st step in the legal reason of our legal tradition of organizing the contract law):
1. verbal contracts (verbis) = the will of the party to reach an agreement must be expressed with
specific words, it’s not free
2. written contracts (litteris) = the will of an agreement must be expressed in a written way
3. real contracts (re) = the agreement is not enough, someone was to give concretely something
→ only after the obligation starts, the contract perfection will happen only if the delivery happens
[ex: contract of loan]
4. consensual contracts (consensu) = the simple agreement is enough to start the obligation, the
delivery is not important and the agreement creates a legal binding between the parties; they
are:
a. emptio venditio (sale) c. societas (partnership)
b. locatio conductio (hire) d. mandatum (mandate)
All of these types of contracts have a model of reciprocity (the obligation is for both
parties) but in other contract categories [ex: loan contract, promise] there is only 1
obligation of one party
The jurist Marcus Antistius Labeo affirmed that the contract can’t be only the
agreement (not enough): the true contract is the συνάλλαγμα/ultro citroque obligatio
= bilateral obligation: reciprocity is a quality that gives fairness and equality to the
contract → consensual contract = best model of fairness in contract law, it produces an
obligation based on the principle of good faith (bona fide) → the freedom of the
agreement is more important than the structure of the contract
In the 18th cent the school of natural law (Grotius, De Iure Belli ac Pacis)
tried to destroy the Roman model of reciprocity in favor of the freedom of the
agreement of the party as the fundamental element of the contract →
liberalistic idea that the freedom of the individual in the agreement is more important than the fairness,
forgetting reciprocity as a principle of equality
The modern Code Napoleon (art. 1001) and the Italian Civil Code (art. 1221) affirm that contract =
agreement (general contract): there is a liberalistic perspective of freedom, but it’s utopistic because
this idea of contract would need a society of equal human people → today the contract law is an
imposition on the consumer, contract = instrument for capitalism