Property Before Property: Romanizing the English Law of Land

The English language of property has roots in Roman law and medieval ius commune rather than a purely native common law tradition. McSweeney examines two legal treatises spanning 1187-1258 written by English royal court officials—the Glanvill and Bracton—to trace how English landholding vocabulary emerged from three competing linguistic systems: Anglo-French vernacular, royal court writs, and Roman law. The authors of Bracton deliberately imposed a Roman legal framework onto English practice, attempting to demonstrate that English royal justices operated within the ius commune system, making them comparative law pioneers. However, the authors faced irreconcilable tensions: English notions of graduated titles and relative property rights conflicted fundamentally with absolute Roman property concepts. McSweeney argues these early treatise writers performed "verbal gymnastics" to force English practice into Roman categories, revealing how property as a legal concept is historically contingent rather than natural, with significant implications for comparative legal scholarship.

Topics: Property · Legal History

Keywords: Glanvill · Bracton · ius commune · Roman law · Anglo-Norman · possession · seisin