Res extra commercium

Last updated

Res extra commercium (lat. "a thing outside commerce") is a doctrine originating in Roman law, [1] holding that certain things may not be the object of private rights, and are therefore insusceptible to being traded. The doctrine encompasses entities such as humans, public areas, organs, citizenship, and prostitution, and is an exception to the general principle of freedom of contract.

Contents

The doctrine can also refer to areas beyond national borders, such as space and the seabed: "these regions are subject to a common freedom of exploitation without exercising national sovereignty." [2] If the world community is conceived as made up "of sovereign, territorial states ... [the implication is] that the space between these states is res extra commercium, a space that, because of its position and function within this community, is disassociated from the full package of rights to possession, exclusion, and alienation that normally may be claimed by holders of property." [3]

Ancient Rome

In ancient Roman law, res cuius commercium non est ("a thing for which there is no commercium ") is the principle that certain kinds of things cannot legally be the object of trade between private individuals. Res extra commercium is the modern Latin expression of this principle. There are two major categories of res extra commercium among the Romans: res communes omnium, things common to all, and res divini iuris, things in the realm of divine law. [4]

Res communes omnium were defined in the juristic Digest as things which "by natural law are the common property of all" and which therefore an individual could not appropriate. The principle of things common to all is relevant to the concept of the res publica , "the sum of the rights and interests of the Roman people, populus Romanus, understood as a whole," from which the word "republic" derives. [5] However, a distinction is to be made between res communes omnium, which were to be accessible to all people but were not seen as owned by the Roman people, and res publicae, which was public property as the opposite of res privatae, private property. Ownership by the Roman people is expressed by publicum (for example, marketplaces, harbors, theatres). [6]

Things common to all include air, flowing water, the sea, and the seashore.

In the application of law to property, the ultimate distinction was whether the property was governed by human or divine law. [14] Res divini iuris are things set aside from human use because they are regulated by divine law, including a thing that is held as religiosa , sacra , or sancta . [15]

In contrast to applications of the principle in modern legal reasoning, res were not excluded from ownership on grounds of morality but because they were necessarily of common benefit to all. [16] Human beings were res for buying and selling as a matter of commercium; both prostitution and slavery in ancient Rome were widespread practices with protections in law for buyers and sellers.

Justifications

Modern justifications of the doctrine of res extra commercium can be distinguished as liberal or non-liberal. In general, liberal legal systems assume that whenever the sides to a contract consent to its conditions freely and informed, with no coercion of any kind, then there's no justification to limit their agreements. The liberal approach holds that consent renders the contract desirable, and thus the state should not interfere. But even within the liberal approach, a departure from the freedom of contract principle can be warranted, as for lack of fairness or flawed consent.

For example, some liberals argue that prostitution should be prohibited because free trade cannot meaningfully issue from coercion or flawed consent. A liberal might also argue that prostitution exposes those who engage in it to risks of sexual offenses and violence— perhaps because enforcement of breaches of agreements would not be effective—and so should be banned, on the similar principle of banning construction work without proper protection for workers, or laws requiring the wearing of a seatbelt.

Res extra commercium can be also justified by non-liberal arguments such as moral enforcement or religious dogmas. Some scholars see non-liberal justifications from the perspective of violating civil liberties and human dignity. In this view, intervention in freedom of contract better upholds civil liberty.

Philosopher Michael Sandel argues that certain practices, such as organ trafficking or surrogacy, are intrinsically bad whether or not the people involved in them have freely consented. Sandel argues that surrogacy erodes the value of childbearing and distorts it, and thus it shouldn't be commodified. In Sandel's view, even the selling of labour can amount to unethical damage to civil liberty, if a person sells his labour in inhumane conditions; the issue is not lack of consent but infringement of human dignity. [17]

In February 2018, the Indian government moved to curb the $11 billion tobacco industry's legal right to trade. For the first time, the government asked the Supreme Court to classify tobacco as res extra commercium as part of its efforts to tame the tobacco companies looking to challenge tough regulations in the industry. [18]

Related Research Articles

<span class="mw-page-title-main">Property</span> Entity owned by a person or a group of people

Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, redefine, rent, mortgage, pawn, sell, exchange, transfer, give away, or destroy it, or to exclude others from doing these things, as well as to perhaps abandon it; whereas regardless of the nature of the property, the owner thereof has the right to properly use it under the granted property rights.

Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property. Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it.

<span class="mw-page-title-main">Roman law</span> Legal system of Ancient Rome (c. 449 BC – AD 529)

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

A brocard is a legal maxim in Latin that is, in a strict sense, derived from traditional legal authorities, even from ancient Rome.

Public property is property that is dedicated to public use. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership. This is in contrast to private property, owned by an individual person or artificial entities that represent the financial interests of persons, such as corporations. State ownership, also called public ownership, government ownership or state property, are property interests that are vested in the state, rather than an individual or communities.

<span class="mw-page-title-main">Self-ownership</span> Concept of property in ones own person

Self-ownership is the concept of property in one's own body, often expressed as the moral or natural right of a person to have bodily integrity meaning the exclusive right to control one's own body including one's life, where 'control' means exerting any physical interference and 'exclusive' means having the right to install and enforce a ban on other people doing this. Since the legal norm of property title claim incapacitates other people from claiming property title over the same resource at the same time, the right to control or interfere with one's own body in any arbitrary way is secured. Anarcho-capitalism defines self-ownership as the exclusive right to control one's body as long as the owner does not aggress upon others, leading to the concept of the sovereign individual. In Minarchism the 'exclusive right' is understood by separating the 'liberty-to' from the 'liberty-from' where for each person the 'liberty-to' is restricted by all the 'liberty's-from' of others, effectively subjecting the 'liberty-to' to the ban on the usage of force. Thereafter self-ownership means the exclusive right to control one's body insofar considering action between inhabitants and not involving the state, making it roughly a pacifist morality only among inhabitants. Self-ownership is a central idea in several political philosophies that emphasize individualism, such as libertarianism and liberalism.

<i>Cuius est solum, eius est usque ad coelum et ad inferos</i> Principle of property law concerning air and subsurface rights

Cuius est solum, eius est usque ad coelum et ad inferos is a principle of property law, stating that property holders have rights not only to the plot of land itself, but also the air above and the ground below. The principle is often referred to in its abbreviated form as the ad coelum doctrine.

Res nullius is a term of Roman law meaning "things belonging to no one"; that is, property not yet the object of rights of any specific subject. A person can assume ownership of res nullius simply by taking possession of it (occupatio). However, in ancient Rome, certain forms of res nullius could never be owned because they were considered to belong either in common to all or to the divine rather than human dominium. The use of res nullius as a legal concept continues in modern civil legal systems.

<span class="mw-page-title-main">Civil code of Argentina</span>

The Civil Code of Argentina was the legal code in force between 1871 and 2015, which formed the foundation of the system of civil law in Argentina. It was written by Dalmacio Vélez Sársfield, as the culmination of a series of attempts to codify civil law in Argentina. The original code was approved on September 25, 1869, by the passage of Law 340, and became active on January 1, 1871. With numerous subsequent modifications, it continued to be the foundation of Argentine civil law for more than a century. On 1 August 2015, the Civil Code of Argentina was replaced by a new Civil and Commercial Code - Código Civil y Comercial de la Nación.

<span class="mw-page-title-main">Public trust doctrine</span>

The public trust doctrine is the principle that the sovereign holds in trust for public use some resources such as shoreline between the high and low tide lines, regardless of private property ownership.

Res communis is a concept or doctrine. The expression is a Latin term derived from Roman law that preceded today's concepts of the commons and common heritage of mankind. It has relevance in international law and common law.

<span class="mw-page-title-main">Abstraction principle (law)</span> Principle in German law

The abstract system of title transfer is a legal term in German law relating to the law of obligations and property law. Although no express reference to it is made in the German Civil Code (BGB), the concept of separating a personal undertaking to pay or exchange goods or legal rights from the conveyance of title to those goods or legal rights is fundamental to German private law.

Libertarian Christianity is a designation that encompasses a variety of people, ideologies, philosophies, etc., the commonality of which is that each of these claims some commitment to both libertarianism and Christianity. Libertarianism and Christianity, as societal entities, are each composed of a variety of factions, each of which claims some distinguishing features that make such faction more libertarian, or more Christian, than other factions operating under the same libertarian or Christian banner. Libertarian Christians are yet another faction within each of these two internally diverse superstructures. What makes libertarian Christianity unique is that people who claim to be libertarian Christians are people who either implicitly or explicitly claim to have found some kind of ideological bridge that makes libertarianism and Christianity compatible. Whether people who claim to be libertarian Christians have discovered an ideological bridge that is genuinely faithful to the fundamental tenets of both libertarianism and Christianity is inevitably a question whose answer determines whether the libertarian Christian's bridge is ideologically sound or is based on pure presumption and wishful thinking.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

<span class="mw-page-title-main">Scots property law</span> Rules relating to property in Scotland

Scots property law governs the rules relating to property found in the legal jurisdiction of Scotland. As a hybrid legal system with both common law and civil law heritage, Scots property law is similar, but not identical, to property law in South Africa and the American state of Louisiana.

In ancient Rome, infamia was a loss of legal or social standing. As a technical term in Roman law, infamia was juridical exclusion from certain protections of Roman citizenship, imposed as a legal penalty by a censor or praetor. In more general usage during the Republic and Principate, infamia was damage to the esteem (aestimatio) in which a person was held socially; that is, to one's reputation. A person who suffered infamia was an infamis.

Consensu or obligatio consensu or obligatio consensu contracta or obligations ex consensu or contractus ex consensu or contracts consensu or consensual contracts or obligations by consent are, in Roman law, those contracts which do not require formalities.

This collection of lists of law topics collects the names of topics related to law. Everything related to law, even quite remotely, should be included on the alphabetical list, and on the appropriate topic lists. All links on topical lists should also appear in the main alphabetical listing. The process of creating lists is ongoing – these lists are neither complete nor up-to-date – if you see an article that should be listed but is not, please update the lists accordingly. You may also want to include Wikiproject Law talk page banners on the relevant pages.

<i>Privatus</i>

In Roman law, the Latin adjective privatus makes a legal distinction between that which is "private" and that which is publicus, "public" in the sense of pertaining to the Roman people .

In ancient Roman law, commercium or ius commercii was a privilege granted to a non-citizen (peregrinus) or a holder of Latin rights to acquire property, make contracts, and trade in the same ways as a Roman citizen. The jurist Ulpian explained commercium as "the right of buying and selling reciprocally" .

References

  1. ↑ Rudolph Sohm, The Institutes: A Textbook of the History and System of the Roman Private Law 320-3 (1901).
  2. ↑ Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law 41-2 (1998).
  3. ↑ Philip Steinberg, The Social Construction of the Ocean 91 (2001).
  4. ↑ Adolf Berger, entry on res cuius (quarum) commercium non est, Encyclopedic Dictionary of Roman Law (American Philological Society, 1953, 1991), p. 677.
  5. ↑ Berger, Encyclopedic Dictionary of Roman Law, p. 677 on res communes omnium and p. 679 on res publica.
  6. ↑ Berger, Encyclopedic Dictionary of Roman Law, p. 677 on res communes omnium and p. 679 on res publicae, citing Digest 50.16.15, and res privatae.
  7. ↑ Berger, Encyclopedic Dictionary of Roman Law, p. 677; p. 378 on caelum.
  8. ↑ W. W Buckland, A Manual of Roman Private Law (Cambridge University Press, 1939), p. 108.
  9. ↑ Buckland, A Manual of Roman Private Law, p. 108.
  10. ↑ Berger, Encyclopedic Dictionary of Roman Law, p. 677; p. 378 on calm; p. 474 on flumina publica.
  11. ↑ Andreas Wacke, "Freedom of Contract and Restraint of Trade Clauses in Roman and Modern Law," Law and History Review 11:1 (1993), pp. 17–18, citing Ulpian, Digest 8.4.13 pr.
  12. ↑ Berger, Encyclopedic Dictionary of Roman Law, p. 578 on mare; p. 567 on litus maris; and p. 606 on occupatio.
  13. ↑ Buckland, A Manual of Roman Private Law, p. 107.
  14. ↑ Berger, Encyclopedic Dictionary of Roman Law, p.  p. 678 on res humani iuris.
  15. ↑ Berger, entry on res cuius (quarum) commercium non est, p. 677.
  16. ↑ Arvind P. Datar, "Privilege, Police Power and Res Extra Commercium: Glaring Conceptual Errors," National Law School of India Review 21:1 (2009), pp. 133-148, especially pp. 133–134, 145–146.
  17. ↑ Sandel Michael J. 2012. What Money Can't Buy: The Moral Limits of Markets. Farrar, Straus and Giroux.
  18. ↑ Kalra, Aditya (2018-01-30). "With Roman law doctrine, govt moves to stub out tobacco industry rights". livemint.com/. Retrieved 2018-02-02.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.