The Roman Legal Structure for Territories [No. 86]
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The Roman Legal Structure for Territories [No. 86]


What happens when you start to leave native
Rome on the one hand, and start to acquire conquest by conquest, properties elsewhere. This presents very serious problems of judicial
and legal administration for the state to handle. And essentially, unless you have a more or
less honest system of taxation and governance, you cannot rule for a very long period of
time. What you have to do is to create some kind
of substructure of land, which will allow indigenous people to continue to live in their
own territories and to be able to trade land with one another and so forth. The farmer and so on, and for that, what you
have to do is to treat your titles a bit aloof. To create the subordinate set of rights, sooner
or later, what you have to do is to make the distinction ironclad. Have sovereignty be perfectly consistent with
small property rights, and then you have a system of regulation which explicitly asks
when you can regulate, when you can tax, when you can confiscate through eminent domain
powers and so forth, but that lies pretty much in the future from this system, and what
we don’t know about Roman law is how this thing actually played out in different territories. Gaius gives you about 10 lines on the whole
subject. There’s nothing whatsoever about this by the
time you get to Justinian, because the provincial gap between the original Romanists and the
territories was ended when everyone became a Roman citizen several hundred years before
Justinian worked. The theory was that we’re gonna protect our
empire, and we have second-class people resolving and it’s not going to work very well, so in
an effort to get support, they expand the citizenship accordingly. So that’s one area. The second area, which a great important,
is what do you do with commercial transaction. The trading relationships of spices from one
location to finished product in another location. And the dominating contract that one has to
deal with in these cases turns out to be sale, and if you’re dealing with sales, than distance,
they tend to be very simple transactions in the sense that I give you complete ownership
of this particular thing and you give me a price. Since we’re gonna be 4,000 miles apart, or
200 miles apart when it all ends, the idea that I sell you something with some residual
rights in the thing that I sold doesn’t make any sense. So by the time you get to the formulation
in Gaius, essentially sale is listed as the first and probably most important of the consensual
promises, a contract, and the only thing that it requires is an agreement between the two
parties about the thing to be sold and the price to be paid.

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