The Influence of Justinian on American Common Law Property

Abstract

The civil law’s impact on American law property may not at first be readily apparent. Civil law property and common law property are structured very differently. How things are classified, be they, for example, movable or immovable, corporeal or incorporeal, is of great import in the civil law; the common law focuses far less on the classification of things. The civil law has a firm, if not restrictive, concept of what constitutes a property right, whereas in the common law, property rights are much more fluid. The civil law has a finite set of rights that are included in ownership, namely the rights of usus, fructus, and abusus. The bundle of sticks that may make up an individual’s interest in property in the common law is, it seems, ever morphing. The very notion that an individual can own property is theoretically foreign to the common law, whereas ownership is a bedrock of civil law property. Civil law property and common law property are unquestionably very different, and yet, they are also very similar. Doctrinally, much of common law property stems directly from the civil law and, specifically, from the father of the civil law himself, Justinian. This essay explores how Justinian’s work influenced a number of common law property doctrines including the rule of capture, riparian rights, servitudes, and the doctrine of waste, to name a few.