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 Private property a right?

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PaulRyckier
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PostSubject: Private property a right?   Mon 08 May 2017, 21:47

I came to the question seeing that the medieval kings concerned their countries as their personal property. As for instance the kings of France enlarged their personal property: the Crown domain by marriage and confiscation and also by purchase
https://en.wikipedia.org/wiki/Crown_land
"France
The crown lands, crown estate, royal domain or (in French) domaine royal of France refers to the lands and fiefs directly possessed by the kings of France. Before the reign of Henry IV, the domaine royal did not encompass the entirety of the territory of the kingdom of France and for much of the Middle Ages significant portions of the kingdom were direct possessions of other feudal lords.
In the 10th and 11th centuries, the first Capetians—while being rulers of France—were among the least powerful of the great feudal lords of France in terms of territory possessed. Patiently, through the use of feudal law (and, in particular, the confiscation of fiefs from rebellious vassals), skillful marriages with female inheritors of large fiefs, and even by purchase, the kings of France were able to increase the royal domain, which, by the 16th century, began to coincide with the entire kingdom."
And en plus they had the backing of the Catholic Church by the Sacre and the anointment making them ruling by divine right...
By searching about the terms in Google I came automatically to this Wink :
https://reshistorica.historyboard.net/t818-the-divine-right-of-kings

In fact it was all started by Chlodovech (Clovis) with his conquests. And this was legitimated by the right of conquest?
I wasn't aware that that rignt existed even till after WWI?
https://en.wikipedia.org/wiki/Right_of_conquest
https://www.amazon.com/Right-Conquest-Acquisition-Territory-International/dp/0198280076


And so we come to the private property of the citizen as you and I.

I did already once research for the history of private property for I don't remember what messageboard and private property existed already from the time of the Greeks. I assume that during the middle ages the "Third estate" got gradually also private ownership?

But I wasn't aware that I with the issue of "private property" had opened a can of worms. As you see from this article there is a lot of controversy about the need of private property and the advantages of it...
https://plato.stanford.edu/entries/property/


And for the record:
https://en.wikipedia.org/wiki/Private_property

Kind regards, Paul.
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nordmann
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PostSubject: Re: Private property a right?   Tue 09 May 2017, 14:14

In Ancient Rome, according to the Institutes of Gaius all laws pertained essentially to persons, and of that block of law a huge proportion pertained exclusively to things. These "things" were classified as res mancipi and res nec mancipi, which loosely translates as "things which are plain to see are property" and "all other things one can own". A slave, for example, was very much a "res mancipi" and as such could be conveyed in terms of ownership ("mancipation"). An idea, or a design, or even a wife (things that resisted pure definitions of ownership) were "res nec mancipi" and therefore owned but more difficult to convey. Both however were backed up by a sheaf of various laws designed to protect the owner, however explicitly or vaguely such ownership could be determined. All ownership therefore could be traced back to a single person (communal property was, by definition, the property of no one), and as such the whole legal system therefore was invested in the concept of "private property".

Gaius was writing in the 2nd century when Roman Law was an accurate reflection of the society that had engendered it. The state owned nothing (when Pompey gifted a theatre to "the people" he still owned it and was responsible for its upkeep etc). There was no concept of commercial "companies" as we understand them. And there was no implication of divine authority in matters of ownership which could override these basic principles.

That changed utterly with the advent of Christianity as a state religion, and in particular how this new religion conveniently lent itself to some radical revision of property law as defined by Justinian. The legal precept whereby all rights were superseded by divine will, and that an elite could establish and interpret this will as they saw fit, effectively rendered all notions of private property malleable and subject to imperial redefinition.

This saw a new concept - the res mancipi and nec mancipi now only actually mancipatory when approved by the emperor and his agents, all citing the religions' theology as an incontrovertible justification for this intervention in the chain. Worse, the intervention could - and often did - see the conveyance result in property move out of private citizens' hands and into a nebulous "state" (or "church" - in other words state by proxy) ownership which had never existed before but now, in some parts of the empire, was to become the new and emphatic norm.

I have read that it was opposition to this trend that saw the origin of the first great commercial "companies", a development which took place in the Byzantine empire in which groups of wealthy individuals, by pooling their property and resources, could better withstand state intervention and thereby established the principal of corporate property as we now also understand it. In the west however the fall of Rome saw the whole legal structure collapse - there was no state as such any longer to claim primary ownership and there were no laws left any more which could enforce the old republican notions of personal ownership.

When you say that Clovis pioneered state ownership in a sense, reinforced by concepts such as "right of conquest" etc, what you are really saying is that Clovis saw that any empire, if it is to be worth its name, should emulate the Roman model as then was still prevalent in the east. Clovis's Catholic "baptism" in 508 - after his initial paganism and then a fierce loyalty to the Arian sept, can be seen in that context too - the imprimatur for "right of conquest" and all the other legal innovations which transferred property directly to himself being the church in Rome. The church, through this arrangement, could pretend to a reassertion of "spiritual" control over the "lost" territories of western Europe. In return Clovis became very wealthy overnight indeed, and did so "legally", as did his successors and emulators for centuries afterwards.

Against this heavy-handed acquisition of rights and property by the big players, backed up to the hilt by these "spiritual" leaders (all of whom became filthy rich in the process), the notion of private property as it might legally apply to citizens took a back seat for many years, and in fact the first attempt to define it as a "personal right" of the individual again that I'm aware of was in the Venetian Republic (effectively run by private companies) using, ironically, old Roman Republican Law such as Gaius had described in the 2nd century as its basis. For everyone else property ownership was a favour essentially granted by the monarch, an arrangement supported tacitly and overtly by the church - major beneficiaries of this arrangement wherever it applied. This royal dispensatory aspect to basic property ownership "rights" persists in some countries even today, Britain being one.

There are many examples of how Christianity acted as a retardant in social development - some plain and some exaggerated. The notion of private property as a citizen's legal right was however definitely one area where the church quite demonstrably facilitated not just a slowing down of development but actively helped reverse ancient democratically adduced legal principles for over a millennium.
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PostSubject: Re: Private property a right?   Wed 10 May 2017, 12:35

Paul, further to the Venetian Republic and the concept of private property - you might be interested in the case of Filippo Brunelleschi.



Filippo was, at the time, a pretty renowned engineer and architect - his domed roof of the Cathedral in Florence was for centuries the largest such structure built of brick in the world (superseded by Christopher Wren's St Paul's much later). He was probably the first "Renaissance Man" worthy of the name, his interests extending to art (he invented linear perspective geometric tools that artists could use to "verify" their images), literature (he compiled a glossary of Italian words unrelated to Roman purely in order to demonstrate in etymological terms that the accepted historical record had huge gaps in it), and along with fellow goldsmith Donatello (himself no slouch in the Renaissancing business) "humanist antiquaries". Wearing the latter hat, it was Brunelleschi who pushed the doge and his parliament into adopting a set of statutes based on the ancient Lex Romana - then surviving only in fragments and where bits of it had been adopted in legal traditions around Europe. He also headed up the committee appointed to draft this legal constitution, and to his credit he realised early on that in fact the original - once it was all glued back together - was about as good as it got, at least as a constitutional starting point from which to draft more modern and case-specific laws later.

He was therefore more than familiar with the ancient concepts of "res mancipi" and "res nec mancipi", and was intrigued by the latter as he rightly guessed that just about anything that couldn't be lifted by a crane fell into that category (his analogy). Whereas existing European laws chickened out and just assigned their ultimate "ownership" to God (in other words whoever had the biggest clout - the side that God traditionally favours in such cases), and aware that this therefore had to be improved on sooner rather than later, he decided a simple test case was in order to hopefully help frame a law which would cover "nec mancipi" better than even the Romans had managed before.

Under basic Venetian law, which as he knew (after all, he'd helped draft it) was based on the old Roman law, the workaround to keep God out of the equation was to default to corporate ownership in many of these cases. If the responsibility for the upkeep of a property was shared, then those who shared it corporately owned it by right. If a member of a society, such as a guild, created something he could not have done without the benefit of membership, then the guild corporately owned the item until it was conveyed to the actual creator by contractual agreement. And so on - everything having a rightful owner who wasn't a fictional bearded entity in the sky, and therefore the courts in matters of dispute knew that they had a simple choice to make. Have you a right as an individual to own it? Have you a right through contracted agreement to own it? If the answer was no in both cases then it must be corporately owned. If no corporation was obvious then it was either communally owned (ie. by the doge for the state) or not owned at all.

Brunelleschi saw the obvious flaw in this and decided to test it. To everyone's amazement he opened a law suit against the state legislature (basically himself) in which he challenged any corporate right to ownership of a particular cargo vessel, moreover one that as yet didn't exist!

The point was that it was his own design (boat building being another string to the man's extensive bow) and, crucially, one which was a huge improvement over those in current use. In Venice at the time cargo boats were a subject of huge interest to the state - they represented in very concrete terms the basis of the country's wealth and prosperity, and any improvement in that area was an investment in the communal future.

Brunelleschi however saw no reason why any such assumption on the state's part - effectively treating his design as "nec mancipi" and therefore within their remit to assign property rights - should deprive him of its exclusive ownership. After all, at this point the boat was simply an idea in his head - how could anyone claim ownership of it in its present location? And if anyone threatened to do so later once it became a real thing all he had to do to stop them in their tracks was to keep it in there and never allow it escape the bounds of his own imagination.

In other words Brunelleschi proved that a concept unique to an individual was that individual's property in as real and as "mancipi" a sense as his hat or his house, a tacitly understood principle but one which up to that point had never been enshrined in law. Moreover it was in society's interests to make sure that this definition of property extended through the concept's development and on to whatever material "thing" emerged at the end of the process.

Filippo had invented the notion of a patent, and the Patent Statute of 1421 was the world's first of its kind. Overnight it had a radical effect on the guilds - up to then run on typical Italian lines but which thanks to this law meant that they transformed immediately into powerful commercial companies, not so much collectives of skilled artisans but hirers of diverse skills and brokers of patents with a view to producing finished product economically viable enough to compensate them for their investment and reap a profit. The new system worked much better than the old. Innovators received guaranteed financial reward and were encouraged to innovate further, and in the space of a century Venice grew from a stroppy little republic city-state into the dominant economic force in the Mediterranean (and even for a while the dominant military force).

In 1474 the patent legislation was streamlined under the famous Venetian Patent Statute, which itself became the legal prototype of every such statute enacted elsewhere as others raced to catch up with this little "mouse that roared" tucked away in the arse-end of the Adriatic and which, thanks to some intelligent adoption of ancient Roman Law along with some equally clever adaptations for modern life, redefined property and rights of ownership (including that of "intellectual" property) to such an effective extent that few countries these days deviate much from the principles Brunelleschi helped establish with his imaginary "cargo boat".


PS: For the record - his boat was eventually built, but was superseded by an even better design within only a few months so he never made much money out of it. However the lad who designed the better boat did indeed make a fortune, which had been Brunelleschi's point all along anyway.
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PaulRyckier
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PostSubject: Re: Private property a right?   Wed 10 May 2017, 22:11

Nordmann,

I wanted to reply already yesterday, but lack of time...
Thank you very much for your excellent summary of the change that I was hinting to. And as usual you made it in a clear and logical way. I thank you for that.

"Against this heavy-handed acquisition of rights and property by the big players, backed up to the hilt by these "spiritual" leaders (all of whom became filthy rich in the process), the notion of private property as it might legally apply to citizens took a back seat for many years, and in fact the first attempt to define it as a "personal right" of the individual again that I'm aware of was in the Venetian Republic (effectively run by private companies) using, ironically, old Roman Republican Law such as Gaius had described in the 2nd century as its basis. For everyone else property ownership was a favour essentially granted by the monarch, an arrangement supported tacitly and overtly by the church - major beneficiaries of this arrangement wherever it applied. This royal dispensatory aspect to basic property ownership "rights" persists in some countries even today, Britain being one."

That's it what I wanted to say among others
"For everyone else property ownership was a favour essentially granted by the monarch, an arrangement supported tacitly and overtly by the church - major beneficiaries of this arrangement wherever it applied. This royal dispensatory aspect to basic property ownership "rights" persists in some countries even today, Britain being one."

Yes it was all a gift a charter of the monarch, who owned it all, indeed with the support of the church established from the time of Pepin the Short
https://en.wikipedia.org/wiki/Pepin_the_Short
"Pepin was then elected King of the Franks by an assembly of Frankish nobles, with a large portion of his army on hand. The earliest account of his election and anointing is the Clausula de Pippino written around 767. Meanwhile, Grifo continued his rebellion, but was eventually killed in the battle of Saint-Jean-de-Maurienne in 753.
Pepin was assisted by his friend Vergilius of Salzburg, an Irish monk who probably used a copy of the "Collectio canonum Hibernensis" (an Irish collection of canon law) to advise him to receive royal unction to assist his recognition as king.[3] Anointed a first time in 751 in Soissons by Boniface, archbishop of Mainz, Pepin added to his power after Pope Stephen II traveled all the way to Paris to anoint him a second time in a lavish ceremony at the Basilica of St Denis in 754, bestowing upon him the additional title of patricius Romanorum (Patrician of the Romans) and is the first recorded crowning of a civil ruler by a Pope. As life expectancies were short in those days, and Pepin wanted family continuity, the Pope also anointed Pepin's sons, Charles (eventually known as Charlemagne), who was 12,and Carloman, who was 3."

And from this all those kind of charters given by the monarch while he ruled  his kingdom in the name of God, with the assistance of the Church.
https://en.wikipedia.org/wiki/Royal_charter
https://en.wikipedia.org/wiki/Municipal_charter
http://medievalwriting.50megs.com/word/borough1.htm
https://en.wikipedia.org/wiki/Town_privileges
https://en.wikipedia.org/wiki/Charter_colony


And yes the fiefs, although as with the apanage it could be counterproductive as in the case between the French monarch and the Burgundian apanage, where the duke of Burgundy grew as powerful as the monarch himself...

Kind regards, Paul.
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PostSubject: Re: Private property a right?   Wed 10 May 2017, 22:34

Thanks again Nordmann for your description and interesting narration about the Venetian Republic. I learned from it. The first one after the collapse of the Roman Republic? And the Dutch Republic another one? Although I am not sure about the separation of Church and State?

Kind regards, Paul.
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PostSubject: Re: Private property a right?   Thu 11 May 2017, 13:47

Paul wrote:
The first one after the collapse of the Roman Republic?

That would be San Marino - a republic from 301CE, actually even before the traditional date for the end of the Roman Empire in the West. If you insist on finding one after the collapse of that empire then it's the Netherlands which is regarded as the first.

However defining a republic is difficult. Venice chose the name some hundred and fifty or so years before Holland's Batavian experiment, though in truth did little else to emulate the republican structure as had been set down in Rome regarding parliament and leadership elections etc. Likewise Iceland, mainly through absolute coincidence, ended up emulating the structure from its beginning but never considered itself a "republic" at all.

There's a similar problem with trying to trace the roots of feudal attitudes towards property, where the monarch's dictum was "What's mine is mine, and what's yours is mine too". This in fact has an incredibly long legacy within organised social structures going back to ancient Mesopotamia, so one has to be careful declaring any monarch as "first" to adopt it.

What's important in Western Europe is measuring the degrees of deviation from the notion of property as defined and understood under Roman law, purely because we know Rome managed to enforce that definition for centuries in the bulk of its territories, and therefore subsequent deviations were often quite intentional, imposed deliberately, and recorded as such. The first big recorded deviation was of course Rome itself, under Justinian, and despite the infamously bad written records for the "dark ages", we know that it was his definition which would-be emperors elsewhere in the West then sought to emulate during that period, and we know also that it was the Christian church which was foremost in ensuring that they did so.
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PostSubject: Re: Private property a right?   Fri 12 May 2017, 19:57

You are really a source of knowledge Nordmann. Thanks again for your thoughts and background information. I will remember this when once doing new research.

Kind regards, Paul.
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PostSubject: Re: Private property a right?   Sat 13 May 2017, 20:35

A nice documentary I just found about Filippo and his dome here, Paul. A bit off topic (though I suppose the cathedral is private property, so maybe not).


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PostSubject: Re: Private property a right?   Mon 15 May 2017, 14:45

I feel guilty about my trip to Florence, so in an effort to bring the thread back on topic:

It is worth looking at early European attitudes towards property prior to Roman influence. Always a good starting point when doing this is to look at Brehon Law as it applied in Ireland, the longest continuous system of law in operation in Western Europe up to the Middle Ages, so one which was both well documented and a fair indication of ancient attitudes to property (and all other aspects of civil law) before Roman codes were there to be enforced, emulated or rejected later.

An important indicator of how "private" private property might have been is in the practice of "Cethairslicht Athgabálae" (literal translation being "The Four Paths of the Place of Holding Hostage"). This is a practice we would now call "distraint" - you see it a lot now with legal clampdowns on organised crime in which even ostensibly legally held properties are seized. Under Brehon Law the same principle applied, especially in relation to the non-payment of a contracted debt, which could result in the defaulter being deprived of goods to the value of the debt owed.

But this is where it departed from modern law, or even Roman law for that matter. The problem resided in the fact that although goods could "belong" to someone this was not the same as that person "owning" the same goods. Instead the relationship was interpreted as "being most identified with" the goods in question, and this meant a straight seizure just wasn't an option - one cannot simply remove "identification with" as a good's attribute and assign it to someone else.

The solution was the above mentioned legal stricture - supervised by those who had been legally appointed to uphold the contract - in Brehon Law potentially quite a gang, including the creditor, the debtor, an appointed overseer by both partners, a nominated "hostage" in case things went pear-shaped, and also other appointees if the extended family got involved. In this stricture the goods were seized and then moved physically to the care of a neutral third party. While there they were subjected basically to four tests of identification over an agreed period of time. Depending on the goods in question this might mean a complete transfer of the goods over to the creditor as payment of the debt, but not always. Livestock for example could be withheld and returned if their repatriation led to starvation on the debtor's side - an overpayment of the debt and an overtstatement therefore of identification. Family heirlooms, books etc might also fail at least some of the four transitionary tests and find their way back to the owners. Alternatively the whole process could take so long that the neutral third party finds himself most identified with the goods, in which case they're his.

The system sounds overly complicated, but its track record of having worked for well over a thousand years (and possibly much much longer) shows that it was exactly what a society without recourse to "courts" as the Romans (and later we) would understand the term needed in their stead. It worked because at the outset of the legal process the presumption is that no property is "private" by default. Property is property and indisputably so, right up to the point that it becomes the subject of a test of with whom should it be identified most - normally through debt defaulting, though also through any public challenge of ownership. From that moment on it loses the right to be called "private" by anyone, and reverts to that status only after a long and transparent process in which there is every chance the original grievance will have been resolved even before the property's ownership needed to be redesignated at all. And of course, in the case of livestock, it never lost its productive potential during the whole process, even though such productivity was likely managed by and accrued to a third party. But the most important thing was that all such distrainted property demonstrably and in a very real sense continued to have a value and function in the public interest, be it only as a very visible deterrent to potential defaulters but in fact, much more often and much more valuably, as property which - if it had productive potential - continued to do so throughout the process. Privacy, in the sense of property, just did not enter into it. Books got read. Utensils got used. Cows got milked. Houses got lived in. Cattle were slaughtered for meat - all these things carried on. And the more they carried on in the public interest the less likely the goods would ever get re-identified as "exclusive" property of the person from whom they had been seized.

It takes a bit of thinking about these days - we just don't have modern equivalents for such notions of ownership (and such ruthless recycling of assets by the community). But it existed for millennia, and could not have done so without everyone buying into the concept of property and ownership on which it depended.
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PostSubject: Re: Private property a right?   Wed 24 May 2017, 20:21

@nordmann wrote:
A nice documentary I just found about Filippo and his dome here, Paul. A bit off topic (though I suppose the cathedral is private property, so maybe not).




Thank you very much for this interesting documentary, Nordmann. I watched it completely.

Kind regards, Paul.
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PostSubject: Re: Private property a right?   Wed 24 May 2017, 20:27

About your Irish "property", Nordmann.

That was something I never heard about. I read it meticulously to understand it all.
What a source you are Nordmann and what a broad field of interests. Many days I am still impressed by you. The way you bring it all logically and understandable as it is such a complex matter.

Kind regards and with esteem, Paul.
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