The concept of possession in the humanistic legal literature and others

2006 Fiscal Year Final Research Report Summary

• Project/Area Number: 17530002
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: Fundamental law
• Research Institution: The University of Tokyo
• Principal Investigator: KOBA Akira The University of Tokyo, Graduate School of Law and Politics, Professor, 大学院法学政治学研究科, 教授 (20009856)
• Project Period (FY): 2005 – 2006
• Keywords: possession / civil law / civil procedure / Roman Law / Humanistic Studies

Research Abstract

The legal concept of possession was inherited from Roman Law in the Western European juristic world since the eleventh Century, but it had never hardly functioned in the practice with ease. They had to wait for the humanistic studies in the Renaissance period to comprehend its precise conceptual figures. Nevertheless this concept is fundamental to the whole system of legal science, in particular in civil and civil procedural law. This research aims at an analysis of the discrepancy between the progress which the humanistic studies had achieved in several centuries, and the still chaotical situation of the early modern legal practices in particular in Italy and France of the sixteenth Century. Not only we tried to examine various aspects of interactions, and through this limits of the legal sciences and tough challenges of some pioneer experts in the judiciary proceedings. The former is envisaged rather as specific implements that were destined to dig out a new conceptual apparatus from thick layers of texts inherited, than as a corpus of various definite institutions. In this section, we arrived at a certain degree of new perspective. We considered not only humanistic jurist but also humanists in general as Petrarca, Bruni, Machivelli etc.. Thus we commenced to grasp certain bias common to the French humanistic jurist as Hotman, Duarenus, Donellus etc.. Their image of Classical Roman Law is not absolute, nor a genuine historical figure. That is, we can also point out a certain inaccuracy in their instruments by which to lead the social reality, and so far they also were not sufficient to supply to the practice with armors lucid enough. We would have a preliminary perspective how difficult was for the legal practice to fight against precarious situations of possession and how great was the shortage of the conceptual arsenal prepared by the "elegant" legal science, but this side of research still stay at a initial point, because we were prevented from a second tour for search of materials by disease, and also a second term of program is not granted. We can only say that they encountered a fatal paradox between a polic-orientated regulation of violence and an absolute revendication of property. That is the very confusion to be cleared up by a future Romanist Savigny in the nineteenth century Germany