An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
In primitive or archaic society as households grow unwieldy there is a
partition which involves partition of property as well as of the
household. Indeed in Hindu law partition is thought of as partition of
the household primarily and as partition of property only
incidentally. Also in Roman law the old action for partition is called
the action for partitioning the household. Thus, at first, partition
is a splitting up of an overgrown household into smaller households.
Presently, however, it tends to become a division of a household among
individuals. Thus in Roman law on the death of the head of a
household each of his sons in his power at his death became a _pater
familias_ and could bring a proceeding to partition the inheritance
although he might be the sole member of the household of which he was
the head. In this way individual ownership became the normal condition
instead of household ownership. In Hindu law household ownership is
still regarded as the normal condition. But with changes in society
and the rise of commercial and industrial activity, a change has been
taking place rapidly which is making individual ownership the normal
type in fact, if not in legal theory.
Self-acquired property, the second disintegrating agency, may be seen
in Hindu law and also in Roman law. In Hindu law all property is
normally and _prima facie_ household property. The burden is upon
anyone who claims to be the individual owner of anything. But an
exceptional class of property is recognized which is called
self-acquired property. Such property might be acquired by "valor,"
that is, by leaving the household and going into military service and
thus earning or acquiring by way of booty, or by "learning," that is,
by withdrawing from the household and devoting oneself to study and
thus acquiring through the gifts of the pious or the exercise of
knowledge. A third form was recognized later, namely, property
acquired through the use of self-acquired property. In the same way in
Roman law the son in the household, even if of full age, normally had
no property. Legally all property acquired by any member of the
household was the property of the head of the household as the legal
symbol and representative thereof. Later the head of the household
ceases to be thought of as symbolizing the household and the property
was regarded legally as his individual property. But Roman law
recognized certain kinds of property which sons in the household might
hold as their own. The first of these was property earned or acquired
by the son in military service. Later property earned in the service
of the state was added. Finally it came to be law that property
acquired otherwise than through use of the patrimony of the household
might be held by the son individually though he remained legally under
the power of the head.
Public-domain text, read in full here on John Shaqi.
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