Impersonal Property
Typology
Brewster Kneen on property modalities in Roman Law:
"In addition to the British focus on enclosures and commons, there is, as part of the same cultural history, Roman law, which recognised five different categories of what might be described as ‘impersonal’ property. These categories are not tidy, as indicated by the word res, the Latin word for ‘thing,’ a fuzzy word if there ever was one. But they do offer more ‘property’ options than seem to be recognised today.
Res nullius
things that are unowned or have simply not yet been appropriated by anyone.
‘Unsettled’ land, traditional knowledge, herbal and medicinal plants and agricultural seeds and human DNA have all been treated as res nullius, ‘the common heritage of humanity’ open to appropriation by others – queens, governments and corporations. The establishment of botanical gardens like Kew and Singapore with material gathered from colonies around the world was an integral aspect of British colonialism, just as the St. Louis Botanical Garden is an integral aspect of Monsanto’s imperialism.8 In recent years there have been innumerable examples of the collection and appropriation of human DNA as if it were res nullius, from the cell line of a Hagahai indigenous person from Papua New Guinea to John Moore’s spleen to the entire population of Iceland.
Res communes:
things open to all by their nature, such as oceans and the fish in them or the air.
This is the understanding of the commons promoted and vilified by Garrett Hardin. It is closer to the truth to say that historically the commons has been a limited-access space managed by a distinct community according to its social norms, which excluded individual benefit at the expense of the community, whether referring to grazing rights or catching fish. Boyle comments that one might say that the function of intellectual property is to turn res communes, things by their nature incapable of ownership, into res nullius, things not yet owned but capable of appropriation.
Res publicae:
things that are publicly owned and made open to the public by law.
This includes parks, roads, harbours, bridges and rivers. Res publicae are public spaces rather than wilderness. There is open access, but one is expected to behave according to social norms and laws.
Res universitatis:
things owned by a public group in its corporate capacity.
The standard ‘owner’ for the Roman res universitatis was a municipality, but both private (churches, universities, hospitals) and public (villages, fishing communities) groups could own property in common, including lands or other income-producing property. Such limited common property regimes may be commons on the inside, but they are property on the outside, that is, vis-a-vis non-members.
Res divini juris;
things ‘unownable’ (of divine jurisdiction) because of their divine or sacred status." (http://www.grain.org/seedling/?id=258)
More Information
- Carol Rose (2003), “Romans, Roads and Romantic Creators: Traditions of Public Property in the Information Age”, Law and Contemporary Problems, Vol 66, Nos. 1/2 at www.law.duke.edu/jounals/66LCPCarolRose