European Property Law: Historical Context and Legal Flexibility

Economic Rights and Land Tenure in Europe

Restrictions on Asset Availability

In the realm of economic rights, local rights in Europe are characterized by imposing strong restrictions on the alienation of assets, especially land. This heritage, often tied to a family, could not be transferred inter vivos without the consent of relatives, and similar restrictions often applied upon the owner's death. It was often established by contract or testamentary succession rules, linking property to a certain lineage. In these cases, the owner was a trustee for life of a set of goods that had to maintain their integrity for subsequent delivery to a designated successor. However, the property's benefits could be enjoyed by different people, or it could provide other useful services.

Medieval Law and Political Power

Medieval law established a close relationship between control over things and political domination over people. Political rights were conceived as economic powers of the Lords, incorporated into their estate and subject to legal negotiation.

Roman Law's Distinction in Property

Ownership of land rights incorporated attributes of a political nature. In contrast, Roman law maintained a clear distinction between public powers and the rights of individuals to their property, not conceiving that public prerogatives could be subject to private legal transactions.

The Reception of Roman Law

Roman law was a collection of solutions to cases, weakly structured together. Its reception presupposed a case-by-case inclusion, not easily adjustable, and incapable of being decided by a single act of political power. Consequently, only gradual doctrinal and jurisprudential work could implement the solutions of Roman law.

A Flexible Legal Order

Flexibility Through Grace

Flexibility is the first characteristic of the pluralistic legal system of Common Law.

Legal flexibility derived from the plurality of normative orders and the openness and casuistry of hierarchy. It was the product of the idea that the domain of law was a sort of "hanging garden" between the heavens and daily life. Thus, legal principles, doctrine, and judicial decisions were the rules of everyday life.

Justice instituted a reasonably good order and fit for human affairs. But above the law of nature was a supreme order: the order of Grace, intimately linked to its own divinity.

According to Domingo de Soto, legend has it that the act of creation, as the first act, was uncaused and free, an act of sheer will, an act of Grace.

Political-constitutional acts that were uncaused, to amend or alter the established order, turned out to be extraordinary and very exclusive prerogatives of the vicars of God on earth, the princes. By using this extraordinary power, they were imitating the Grace of God, and as dispensers of grace, they introduced an almost divine flexibility into the human order.