Medieval Property Rights: Plurality & Divided Domain

Medieval Property Rights: The Plurality of Real Situations

In medieval law, the concept of dominium (a right over a thing) was not necessarily unique. It allowed multiple rights holders over the same asset to coexist. In reality, things, even if a single substance, possess various utilities and are susceptible to various consistent levels of use. Each of these levels may not represent an absolute right for a single individual.

The Divided Domain Theory

While the dominium over all profits of a thing (property) represents the most comprehensive real right and occupies the highest level, the ability to enjoy or utilize any specific value, if sufficiently rooted in the asset, still constitutes a form of ownership with equivalent connotations.

This interpretation of the nature of things led the legal doctrine of the commentators to establish the Divided Domain Theory. This theory conceptualized all such holders as true owners (holders of dominium).

Dominium Directum: The Formal Right

Those who held a right to the very substance of the thing, even if purely formal, were the holders of dominium directum. They possessed a directio actio to protect their rights.

Dominium Utile: The Beneficial Right

Others, who permanently enjoyed and utilized a thing, were the "beneficial owners" or holders of dominium utile. They possessed the respective utilis actio (an action based on a right emanating from use or enjoyment).

Although the substance of a thing is singular, the fact that law emanates from the reality of life explains how one thing can have multiple owners. This is because dominium supports the multi-usage of things, not merely their essence.

Legal Realism and the Application of Laws

Legal realism was employed to find solutions for conflicts arising from the spatial application of legal rules. Historically, the scope of duty often coincided with the scope of a tribe or a community bound by ties of blood and tradition.

With the establishment of political power, law tended to be considered an emanation of that power. Therefore, an equivalence had to exist between the hierarchy of norms and political power.

During the High Middle Ages, there was a tendency towards a territorial conception of power, where laws came into force spatially, independently of:

• The origin of their recipients
• The location of affected assets
• The venue for business transactions