Is there a right of the first occupant? Delving into the medieval theory of possession, P. Thévenin shows how jurists manipulate facts to find the elements that can establish a legitimate right; and suggests that philosophers have everything to learn from these legal practices.
Philosophers at the school of legal history
Do philosophers of law really deal with law? This suspicion has long tainted the value of their reflections in the eyes of jurists, and one would believe, considering the history of the philosophy of law, that its authors are trying to reinforce it, either by confusing law with morality or politics, or by deliberately turning away from what they call positive law in favor of natural law, or again, by outbidding in idealism, or by holding, like Kant, professional jurists for “wooden heads” whose domain only the philosopher can think and unify by consulting his reason.
The work delivered by the philosopher and historian of law Pierre Thévenin is a mediation in this interminable conflict that can only be resolved at the cost of certain shifts. The work that the author proposes consists of demanding the return of law as it is, as it was constructed and practiced, in the considerations of the philosophers who claim to deal with it. It is therefore a question of rehabilitating the history of law that philosophers often thoughtlessly discard. The latter could find in the history of law ample material to conceptualize, including in the areas that they think are reserved for them, ontology and metaphysics. It is at this price that jurists could once again, in turn, find interest in the philosophy of law. Pierre Thévenin is not the first to believe in the happy alliance of legal erudition and philosophy; he cites the work of Agamben on Roman law and the institution ofholy man. The connection of his research to the “archaeological” method also refers to Foucault and the latter’s interest in the immanent rationality of disciplines and knowledge outside of philosophy. His approach is programmatic and allows us to reflect on the geography of disciplines.
The author constructs the book according to this program that its two stages, although very different, achieve by converging paths; the first stage is critical (“Accoster la jurisprudence”) and the second constructive (“Dressing the facts”). After a first part that details the historical blindness of the philosophers of law to the law, their stubborn refusal to consider historical law, and their pirouettes to substitute natural law, or the judicial role of reason, the author devotes the second part to the richly documented example of a study exhibiting the relationships between law and philosophy that the author calls for.
Indeed, in this second part, Pierre Thévenin immerses himself in a field that is little known and little mentioned by philosophers, that of medieval property law, more precisely the theory of possession, and the debates that it arouses among jurists: Bassien, Odofrède, Azon. The dual competence of the author, a philosopher trained in the teachings of Yan Thomas and Aldo Schiavone, allows him to access through this study original and stimulating philosophical reflections on the notion of “facts”. These reflections arise from the very practice of these jurists who were concerned with attributing properties by taking into account both titles and possessions, the latter designating for them these states of fact or particular situations that contain elements that make us legitimately claim a right. Thus, the fact of occupying or holding the land, or the thing in question, is likely to render its possessor, after a certain time, entitled to request to become the owner. He can also, more modestly, attract the protection of the judge against an overly brutal expulsion decision, etc.
Showing that we find rich philosophical materials in the medieval and modern history of a highly technical jurisprudence and relating to civil law should make visible, and allow us to criticize them, certain tropisms as silent as they are tenacious which divert philosophers rather towards political and constitutional law, than towards civil law; rather towards natural or contemporary law, than towards its history; rather towards theory, codes and laws, than towards jurisprudence, practice, and also the pragmatism of jurists; finally, rather towards law, than towards facts which philosophers would believe in their haste that they are given independently of law.
At the end of such an investigation, philosophers will be able to recognize certain other debts: thus, the religion of facts which emerged with the scientific revolution owes much since Bacon to the world of law, to its concern to “establish the facts”, to summon them to give us proof, so many metaphors drawn from the judicial world.
The legal construction of the facts
But what are these facts that jurists aim at, those on the examination of which they base the attribution of certain titles of property? Is it enough to turn away from legal norms to reach the facts? Do they really represent what resists the will, are they the given, the obvious or the objective, in short the being that opposes what must be? The distinction between fact and law, which may seem clear to the philosopher, is not so when we approach certain legal phenomena that make this boundary less clear. Indeed, jurists are capable of changing facts, their properties, their appearance, they are capable of adjusting them to the needs of the situation and their decisions, in short, of dressing them and creating this “custom-made world” that the title of the work evokes, so much so that it is appropriate to abandon the philosophical myth of their original donation, of their nudity, and to seek how the jurist often shows them after having “dressed” them.
Philosophy will thus enrich its ontology with this “legal archaeology of facts” capable of disturbing its certainties; different layers of legal meaning have accumulated in the signification of the notion of “fact” and we no longer see these layers: who remembers, for example, that the factum first had an active denotation, that of being the “fact of someone”, that is to say the action of someone?
The paradoxes of the right of possession
What does dressed-up facts mean? “Jurisprudence invites us (…) to consider facts that are not the work of man, but the work of the law; events that have ‘intervened’ according to the Latin term, without ever having ‘happened'” (p. 245). And indeed, possession is the privileged place where the right attached to it can arise from the fact, where the natural phenomenon is extended into a moral being, whether it is an obligation, a title, or property. We can understand what temptation and what opportunities jurists may have had to adjust in this possessory right, not the right to the facts, but the facts to the right, that is to say to model them, redraw them or interpret them in such a way that they can make possible this or that claim: thus, if acquisition always presupposes a tradition of the thing and if the thing in question is not capable of being taken or transported, one simply feigned its tradition, that is to say that one pretended the fact which was necessary to establish the acquisition of the title of ownership (p. 230). The fact supposedly external to the law, on which the latter relies to distribute the property, could thus always be previously modified and determined by the law itself. The fictional power of the law, which has given rise to numerous studies, thus extends very far.
Instead of respecting only property titles, Roman and then medieval jurists wondered whether certain facts of land occupation could not be established as a source of new rights, new titles, thus transgressing the border that one would think insurmountable between law and fact. In what way can the law, law as it is, and however different from the facts that it is supposed to be, recognize the legitimacy of certain possessions to found new titles? How does the law deal with the facts when possession is long, recognized, etc.? Such is the history of Roman law, which has accommodated owners and possessors, has given itself various possibilities of deciding in favor of the latter against the former, by preparing the fact of possession in such a way that it presents itself correctly dressed to receive this or that right.
A political issue is ultimately articulated on the metaphysical issue: how to establish justice in possessions? And who, between the one who occupies and works the land, or the one who holds the title of owner but never comes there, can rightly, with better right, be considered the legitimate owner? To repair the injustice of situations in which time or context have meant that the possessor should replace the owner, it may be interesting to mobilize the theory of possession. It is understandable that the rediscovery of Roman possessory theories by Germany in the XIXe century could be linked to the search for a non-revolutionary solution to the agrarian problem which was acutely posed in a country still subject to a feudal-type regime: the notion of possession which Savigny rehabilitated, “if it were put into practice by the judges, would be enough to relieve a large part of the peasants of their feudal obligations” (p. 176), and would make it possible to operate by law and in peace, what the French revolutionaries had operated by politics and in pain.
This additional element shows the importance of this kind of work even for political philosophy itself, since it is played out in the workshop of this civil law, from which political philosophy ordinarily turns away, things which are of the greatest political importance.