Greece, Rome, and the Bill of Rights Read Online Free PDF

res , to "things." A thing can be a physical object or a debt one is owed, but both property and debts due have in common that they are assets of economic value. When Gaius and Justinian speak of the law of things, they are referring to the part of the law that governs the formation, exchange, and use of economic assets. 68
Geoffrey Samuel locates the starting point of the idea of subjective rights in Roman laws of property. He stresses that the history of "right" is complex because it follows more than one philosophical line. One strand of the idea of "natural right" has to do with property and ownership, while the other concerns the more abstract moral basis for constitutional theory. This latter line places more emphasis on natural law, ius , justice, and dominium as universal ideals. 69
In part this is an epistemological problem, because the word ius or nomos meant very different things, for example, to Aristotle, Aquinas, and Locke. For Aristotle, the law was a "thing" inevitably intertwined with the polis or state. For Aquinas, ius was objective juridical connection. For Locke, ius was subject to the positive rules of property law. "Thus to compare, even unhistorically," says Samuel, "the concept of a right, or its correlative, in the works of Locke and Aquinas would be to compare two quite distinct structures of legal epistemology." 70

     

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Another way to get at the problem, suggests Samuel, is to locate the difference between real rights and natural rights in private and public law, respectively. The problem with this strategy, however, is that the division between public and private law did not have much practical meaning until after the end of the medieval period.
Samuel thus posits two historical stages. The first stage of legal "rights" has to do almost entirely with physical property, which was what determined an individual's sovereignty within society. The only true "subjective right" in private law is located in Roman laws of property, that is, between persons and things. The second historical stage, the "inductive," was concerned with moving away from the relationship between subject and property and toward the relationship between subject and subject. The third or "deductive'' historical stage in the process culminates in such claims as "I have a right to vote" or ''I have a right to free speech."
The key to understanding modern subjective rights lies in its firm foundation in Roman "black letter" law, that is, in the positive legal details of property rules. From that beginning the evolution of rights ultimately reached the third stage, in which subjective rights transcend the limitations in the Institutes to become a means of understanding human society as a whole, what Samuel calls "a metalegal concept" capable of validating not only law but also morality and politics.
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The fundamental question to which we return, however, is whether at any period in the Roman scheme the individual had any absolute value simply by virtue of being a human being. The answer seems to be no. While in Greek philosophy the law of nature can be seen as the individual's best defense against the law, in Rome the emphasis was on the framing of law itself. That meant that Roman law necessarily would be concerned with the public good rather than the private good of individuals. Surely the public good was seen as protective also of the private good in a sort of "trickle down" effect, but the status of individuals is nevertheless subordinate to the law. 72

     

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Our great debt to the Romans is their belief in the rule of law. This belief embodies the persuasion that reason rather than force is sufficient for dimming human differences and for enabling us to live together without all being the same. In addition, Roman jurisprudence soughtunder the influence of natural lawto approximate what was "always just and good," semper aequum et bonum .
While Roman law contains only the seeds of a theory of