A Tribute to Thanassi: The Influence of Justinian on American Common Law Property

• Author: Sally Brown Richardson
• Position: Charles E. Lugenbuhl Associate Professor of Law, Tulane University Law School.
• Pages: 1111-1117

A Tribute to Thanassi: The Influence of Justinian on American Common Law Property Sally Brown Richardson * “The civil law is beautiful” was a favorite saying of my colleague, mentor, and friend A.N. “Thanassi” Yiannopoulos. 1 When any perceived “ugliness” of the common law reared its head in Louisiana, Thanassi was quick to point it out. 2 He tirelessly worked with the Louisiana State Law Institute to update Louisiana laws while maintaining a strong devotion to the state’s civilian heritage. 3 When Louisiana law students today hear “the civil law is beautiful,” it is usually in the context of the civil law being used as a shield from the encroaching common law. It is worth remembering, though, that Thanassi’s favorite phrase is also a sword. The civil law has long influenced the common law, providing much of the foundation for common law doctrines. One area in which this influence is particularly evident is the subject to which Thanassi devoted much of his academic life: property law. The civil law’s impact on American property law may not at first be apparent. Civil law property and common law property are structured very differently. 4 How things are classified—be they, for example, movable or Copyright 2018, by SALLY BROWN RICHARDSON. * Charles E. Lugenbuhl Associate Professor of Law, Tulane University Law School. The author thanks James Gordley and Ronald J. Scalise, Jr. for providing helpful critiques of this essay. All views and any errors herein are solely attributable to the author. 1. See A.N. Yiannopoulos, On the Bicentenary of the Louisiana Supreme Court: Chronicle of the Creation of a Unique and Beautiful Legal Tradition, 74 LA. L. REV. 649, 651 (2014). 2. E.g., A.N. YIANNOPOULOS, PROPERTY § 13:16, in 2 LOUISIANA CIVIL LAW TREATISE (5th ed. 2015) [hereinafter YIANNOPOULOS, PROPERTY]; A.N. YIANNOPOULOS, PREDIAL SERVITUDES §§ 3:14, 3:33, in 3 LOUISIANA CIVIL LAW TREATISE (4th ed. 2013). 3. See Tyler G. Storms, Interview with Professor A.N. Yiannopoulos: Louisiana’s Most Influential Jurist in Our Time , 64 LA. B.J. 24, 25–26 (2016); Jeanne Louise Carriere, From Status to Person in Book I, Title 1 of the Civil Code, 73 TUL. L. REV. 1263, 1264–66 (1999). 4. YIANNOPOULOS, PROPERTY, supra note 2, § 11:6; Yun-chien Chang & Henry E. Smith, An Economic Analysis of Civil Versus Common Law Property, 88 NOTRE DAME L. REV. 1, 1 (2012). 1112 LOUISIANA LAW REVIEW [Vol. 78 immovable, corporeal or incorporeal—is of great import in the civil law; 5 the common law focuses far less on the classification of things. 6 The civil law has a firm, if not restrictive, concept of what constitutes a property right, whereas in the common law, property rights are much more fluid. 7 The civil law has a finite set of rights that are included in ownership, namely the rights of usus, fructus, and abusus. 8 The bundle of sticks that may make up an individual’s interest in property in the common law is, it seems, ever-morphing. 9 The very notion that an individual can own property is theoretically foreign to the common law, whereas ownership is a bedrock of civil law property. 10 Civil law property and common law property are unquestionably very different, and yet, they are also very similar. Doctrinally, much of common law property stems directly from the civil law and, specifically, from the father of the civil law himself, Justinian. 11 The Corpus Juris Civilis provides the foundation for many doctrines recognized in American property law today. By way of example, the rule of capture, as provided 5. J. INST. 2.1, 2.2; YIANNOPOULOS, PROPERTY, supra note 2, § 2:7; W.W. BUCKLAND, A TEXTBOOK OF ROMAN LAW FROM AUGUSTUS TO JUSTINIAN 185–86 (Cambridge Univ. Press 1963). 6. This is not to say the common law does not classify things; the common law has obvious classifications, most notably real property versus personal property. See YIANNOPOULOS, PROPERTY, supra note 2, § 7:6. The civil law’s codified effort at describing how to classify things, however, is unknown in the common law. 7. JAMES GORDLEY, FOUNDATIONS OF PRIVATE LAW: PROPERTY, TORT, CONTRACT, UNJUST ENRICHMENT 49 (Oxford Univ. Press 2006); Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L. J. 1, 3–6 (2000). 8. LA. CIV. CODE ANN. art. 477 cmt. c (2018) (detailing how different civil law jurisdictions codify ownership rights as rights of usus, fructus, and abusus). 9. See Yun-chien Chang & Henry E. Smith, The Numerus Clausus Principle, Property Customs, and the Emergence of New Property Forms, 100 IOWA L. REV. 2275, 2277–79 (2015). 10. GORDLEY, supra note 7, at 50–51; SJEF VAN ERP & BRAM AKKERMANS, CASES, MATERIALS AND TEXT ON PROPERTY LAW 206 (Hart Pub. 2012). 11. For a discussion on Justinian’s impact on the civil law, see PETER STEIN, ROMAN LAW IN EUROPEAN HISTORY 32–52 (Cambridge Univ. Press 1999); GEORGE MOUSOURAKIS, A LEGAL HISTORY OF ROME 190–95 (Routledge 2007). 2018] A TRIBUTE TO THANASSI 1113 in the infamous case Pierson v. Post, 12 sprang directly from Roman law, 13 with the majority in Pierson expressly relying on the works of Justinian and later civilian...