Feudal Property

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Roman Origins of Emphyteusis


"The Germanic world brought us the lord-vassal relationship, but the landlord-tenant relationship came from Rome. The double-proprietorship characteristic of this relationship arose out of late Roman antiquity, to solve a problem. Municipalities were communities of Roman citizens living outside Rome, patricians who owned the lands around it, called latifundia. These latifundia were worked by slave gangs, and the patricians often administered them by deputizing the more responsible slaves to preside over the less responsible ones. The Roman paterfamilias might give the slave gang leader a peculium for his trouble, but however responsible, the slave could never be a free tenant on the land. Still, this payment incentivized the leader, and gave him an interest in the productivity of the soil.

The municipalities, these communities of Roman citizens, were themselves presided over by Roman functionaries. But because of the instability of the later imperium, the administration of these municipalities changed hands so often that superintending large landed domains became nearly impossible. To solve this problem, the Italian municipalities started leasing land to free tenants in perpetuity, which gave the tenant even more interest in the soil than the slave leader had. This made these latifundia far more productive, and the arrangement was copied by individual proprietors—but the result was that the free tenant was seen as himself having a qualified proprietorship. We call this joint-ownership emphyteusis, and it formed that basic kernel of feudal property relations. This was something altogether desacralized, but when it met with the sacral relation of homage in the Germanic männerbund, the result was the feudalism we know.

At the same time, the feudal world was brought into being by a shift in the basis on which claims of ownership were judged. For the Roman, the law was sacred and highly ritualized, so violations against property were violations against the deity. But late in Roman history, for reasons of structural conflict, this changed abruptly. Whereas originally ownership was a matter of positive law, there arose a distinction between this and ownership as a matter of “natural” law—a basis in law vs. a basis in equity. We can think of law vs. equity as the ancient analogue of legal formalism vs. legal realism. Hence, we get the ownership of the lord—whose title to the land is based on descent—coexisting with the ownership of the tenant, who has no claim whatsoever according to sacred custom.

This move from law to equity—or from tradition to natural law—was accomplished over centuries, and paved the way for the emphyteusis. The important takeaway here is that the transition to feudalism was itself a desacralization. To see what fully sacral property looks like, we have to travel back to the classical world."