New Perspectives in the Roman Law of Property: Essays for Barry Nicholas

By Peter Goodwin Birks | Go to book overview

12
Wild and Tame Animals and Birds in Roman Law

GRANT McLEOD

In Orwell Animal Farm, the domestic animals, led by the pigs, are not sure whether or not certain wild creatures should be considered their 'comrades':

Major raised his trotter for silence. 'Comrades,' he said, 'here is a point that must be settled. The wild creatures such as rats and rabbits -- are they our friends or our enemies? Let us put it to the vote. I propose this question to the meeting: are rats comrades?'

This paper will raise similar doubts about the classification in Roman law of some animals and birds as wild by nature and others as domestic or tame. The difference is important. Above all, the property rules on acquiring and losing title to wild animals are very different from those which apply to domestic ones.1

What might be called the conventional modern doctrine on the Roman distinction can be found explicitly set out by Thomas:

As in modern English law, animals were classified asferae naturae or mansuetae naturae, wild or domestic by nature, the distinction being dependent upon the species not the particular individual animal: a pet lion would still be ferae naturae; the most savage of dogs mansuetae naturae.2

© Grant McLeod 1989.

____________________
1
There are many consequential differences: see e.g. the special rules on the theft of wild animals examined by D. Hughes, "Furtum Ferarum Bestiarum", IJ 9 ( 1974), 184. Though often mentioned, the distinction between wild and tame animals is not discussed in these contexts: e.g. D. 7.1.62 (usufruct); D. 9.1.1.10 (pauperies); D. 9.2.29.6 (Aquilian liability); D. 10.2.8.2 (a.familia eriscundae); D.41.1.44 (ownership and theft); D. 41.2.3.14-16 (possession).
2
J. A.C. Thomas, Textbook of Roman Law ( London, 1976), 167. Professor Nicholas himself in his Introduction to Roman Law ( Oxford, 1962), 131, says something similar but with a subtlety I shall return to below. W. W. Buckland, Text-Book of Roman Law ( 3rd edn. by P. Stein, Cambridge, 1966), is one of many who seem to assume it but do not discuss it. Cf M. Kaser, Occupatio in RE Suppl. 7 ( 1950), 684, 685, and in Röm. Privatrecht, i ( 2nd edn., Munich, 1971), 425 and recently C. Donahue, "Animalia Ferae Naturae" in Studies in Roman Law in Memory of A. A. Schiller, ed. R. S. Bagnall and W. V. Harris (Leiden, 1986), 39.
A version of this paper was presented at a symposium on the Roman Law of Property held jointly by the Roman Law Groups of Amsterdam, Leiden, and Edinburgh in Edinburgh in Oct. 1987.

-169-

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