| This thesis discusses on the antagonism in possession,and proves the proposition that the antagonism in possession historically pushed forward the evolution of private law.The exploration,without stressing the method of legal doctrinal analysis on the definition,contents,nature(being right or fact),classification or system of possession in property law,lies on Kantian possession,Maine's Agencies for evolution of law,Holmes' liability,and Weber's distinction of reasons.It visits the historically significant mechanisms of possession.Methods of this thesis involve legal philosophy,legal history and that of legal notions,comparative law and sociology of law.Chapter One proves that the antagonism in possession is rightful in legal philosophy and that such righteuousness is historically possible.Theories of Hegel and Savigny show that possession is the agency of will and is subject to person,whilst Kantal possession manifests antagonism of will: human beings are allowed to guard rightful possession by coercion of force in the natural status,and in the civil condition the practical reason gives an order with respect to rights to ensure occupation being protected by public Right.Since civil condition is not reached in an instant,the coercion and antagonism in possession is historically possible: anti-social antagonism in societies is the tool to unite wills that coexist with each other's freedom.From perspective of the antagonism of wills,the antagonism in possession might have historically participated in achieving the modern private law.Chapters Two,Three and Four undertake historical reasoning of the proposed proposition.Chapter 2 illustrates how the Roman private law was pushed forward by antagonism in possession.It employes Maine's Agencies of legal evolution i.e.legal fiction,equity and legislation,and discusses how the antagonism in possession contained in these agencies reforms civil law and develops Preator's law.The Roman ownership before the era of Twelve Tablet Law was monopolized by aristocrates in the way that they declared to have the magical capabilities of possession(The Roman corpus and animus in possession can be explained as the mediumistic control of the spirit of things by that of human beings).And the conveyance are magicalized as mancipatio,which was extemly complex and easily nullified.By fiction of in jure cession and Publiciana,the conveyance of ownership was realized with the function of possession and mancipatio was get around.The applicable sphere of Publiciana was extended afterwards to those under which prescription did not expire,including easement,possession in judgments as well as Emptor familiae.As regards equity,the praetors honored civil law and invented possessory interdicts to render Emphyteusis,Superficies,pledge,mortgage,easement(quasi-possession),Precario the opportunities to evolve from contract to property.With respect to legislation,it mainly absorbed achievement of fiction and equity(Justinian invalidated mancipatio and made law for Emphyteusis.Before the legislation of usucapio in Twelve Tablet Law,there had possibly been long-lasting antagonism in possession.Chapter Three explores on how the antagonism in possession assisted in the formation of feudal land law.The infancy of fiefs consists of benefices and precaria and they had respective or collective connection with the possessory antagonism in Roman Emphyteusis and land in precarium.Germans in first taking over benefices were determined to fight against lords to make it inheritable to their heirs,as they were deeply influenced by the conception concealed in the Roman Emphyteusis.Possessors of precaria,affected by the Roman usucapio and also the practice of precarium,against the will of the church,made their heirs to success precaria.Furthermore,writers regards the benefices were the notional succession of precaria,or simply revealed its practice.In customary law,in the event the neighbours proved that the precaria was possessed from the grandfathers or fathers of the possessor,such adverse possession was justified.The English fiefs were viewed as experience the same development of the Continental lands,from the life-time holding,to the tenants had them inherited by their own heirs as against the wills of the lords,as to the consequence of being generally inheritable.In the ever-lasting possessory battles of tenants and lords,King Henry III invented several types of possessory interdicts in the benefits of tenants as against lords and church.On basis of such separation and antagonism of private rights,the Continent developed the System of Participatory Justice,and England,lies on the double ownership of fiefs as ruled in the Magna Carta,formed the traditions of assembly of tenants,which was the foundation of Parliament,and the practice of proving of possession by 12 neighbours,assisted in evolution of the jury system.Chapter Four examines the competition of possession and registration in English feudal land law,and it focuses on that as reflected in the uses.Prior to the compulsory registration of uses,there was weak element of governmental regulations in the practice of land registration.Registration of uses showed that the regulation from central government,and it confronted ferocious antagonism.Subinfeudation to the secular and monks dispersed the benefits of lords and king,i.e.primer seisin(and the corresponding wardship,marriage and relief)and escheat.King Henry VIII restricted subinfeudation(transferring of possession),but tenants set up uses(to devise the possession on behalf of the beneficiary).Henry VIII pressed the parliament to pass Statute of Uses and Statute of Enrolments,to consolidate uses and possession in one person,in the method of land registration.Evasion of such regulation on possession was that “uses to uses”(viz to set up a leasehold and then transfer it)was subsequently devised.Uses were originally foreign to common law,and chancellor viewed them as simple contract and protected them despite of their lacking of formalistic elements in contract.Possession and the private rights conveyed in it prevailed land registration.Chapter Five,by the instrument of sociology of law,generalizes the common role that the foregoing antagonism in possession played,and that was the breaking through of the formalistic irrationality.In formalistic irrationality,the status contracts,redemption contracts(as an alternative for revenge)and commercial contracts that were entered into among members of blood community were guaranteed by the bloody mediums,and were highly inconvenient.The commencement of reform lay in that mediums and possession were mixed guarantee of various obligations(there were delivery in mancipatio and possession of hostages in redemption contracts).Mediums were gradually eliminated and possession commenced to solely function as the guarantee of obligations(e.g.the Roman and English possessory interdicts,in jure cession and Publiciana).The evolution of Roman contract,from nexum to consensual contracts,reflects such pattern.The English contract history also follows such law.In the earliest form of English contract,the debts,oaths of witnesses were mediumistic guarantee of existence of delivery.Assumpsit is the legal fiction of trespass.The foundation of such “tort” is,the trespasser has possessed the property before the wrong.In the legal evolution,judges started to view that delivery itself constitutes contract.This proves that delivery guarantees contract.Meanwhile,delivery was the soil for consideration,as delivery reflected the notion of quid pro quo and was the formalistic guarantee.The formalistic irrationality were weakened,and notions of bona fide,legal chains and consideration grew.Possessory guarantee turns from possession of external things to the promise of the others.Chapter Six examines the application of the historical antagonism in possession in legal reform and explains why these reform can be named as equitable reform.This Chapter refines three common characteristics:1.Common laws were rigid due to formalistic irrationalism;2.The reformers have judicial powers;3.The reformers,instead of directly invalidating common laws,turns to the peaceful utilization of possessory guarantee in place of that of formalistic irrationality.The antagonism in possession launches legal reform and produced three fruits: 1.it provokes the simplest form of contract and assisted in the growth of principle of bona fide,notion of legal chains and that of consideration;2.it distinguished qualified ownership or equitable ownership from the single ownership;3.it facilitates jury system and System of Participatory Justice. |
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