Detentio について

Abstract

Detentio' means a kind of the meaning of 'having'. In the history of human civilization, there are three stages or phases in the development of the idea of having. 1. Dominus In the nomadic period, the wild beasts were domesticated and the captured peoples compelled to become slaves. This is the first stage of having. The domnius originated from 'domare', to domesticate. 2. Possessio Next, the fields and farms were cultivated and came to be possessions of the human beings. Nature was devided among the people. Such a act of division is not only a mere act of separation, but also that of forming a new fact of social construction. This is the reason why the idea of nomos originated from physis. In general, the word nomos has two meanings: first of all, 'pasture', secondly, 'law'. Strictly speaking, they are not the same. There is a difference in the accent. The word nomos in the meaning of pasture has its accent on the latter 'o' (nomós) and in the meaning of law, on the former (nómos). But in both cases the word nomos originated from the Greek verb nemō (νέμω), meaning 'to divide'. The natural fields were divided among the people and gradually came to be the domain of the people. This is the way in which the concept of possession appeared. 3. Detentio In the system of Roman Latifundia, the owner of the territory and the tenant farmers were considered to be quite separate. The tenant farmers were called 'colonus'. They were not slaves but free people, however they were bounded to the land. The word detentio itself means 'to occupy', not merely to have, but to have actually in hand. It does not mean the right of having; on the contrary, it means the very fact of detention itself. According to Prof. Jhering (in his book titled 'Besitzwille') the idea of detentio is originated from the system of the Roman household. It indicates the relationship between the dominus (master) and the so-called Pächter. In this paper I have endeavoured to examine the mutual relationships among those three kinds of forms of having. I have layed especially stress on the elucidation of the idea and fact of detentio. The result which I have attained hereto is summed up as follows: The detentio is most fundamental among the conceptions of having. It already existed in most ancient times, but in modern times it has come to be acknowledged as a lawful right.