Comparative Law, the Law of War, and Usufruct
The nature of the legal pluriverse (“the plurality of existing normative orders”) remains a subject of debate. Monists view international law and domestic law as forming a single legal order. Dualists, on the other hand, take the view that international law and domestic law exist independently. The latter tend to describe international law and domestic law as occupying different dimensional spaces. For instance, Anthony Aust notes, “International law and domestic law (the law in force within a state; sometimes termed ‘municipal’, ‘internal’ or ‘national’ law) operate on different planes.”
Though these two schools of international legal thought “remain polemical,” each recognizes a degree of interrelationship between the international and domestic legal orders. Even if one views international and domestic law as occupying completely different legal planes, one may still find interdimensional moments at which these planes intersect.
Because international law takes aspects of its shape from domestic legal systems at multiple points, comparative law analysis can be illuminating. On this point, international law draws heavily from civil law systems based on Roman law for their sources, shape, and substance. During its genesis, Roman legal concepts were incorporated into the primordial structures of international law. For instance, Hugo Grotius, one of the founding fathers of international law, has been described as “a humanist steeped in Roman law” who “made use of Roman law and Roman ethics” in his international legal work.
Other early originators of international legal thought such as Francisco Vitoria and Emmerich de Vattel were, likewise, civil law jurists with an understanding of Roman law. Their foundational scholarship is suffused with Roman and civil law concepts. In the words of Arthur Nussbaum, “Roman law not only supplied the nascent international law with terms and captions, but also imbued it with fertile impulses.” Professor Christopher Blakesley has further underscored the unique interrelationship between international law and civil law systems based on Roman law, opining that a true understanding of the structure of international law requires an understanding of how other legal systems operate and how different cultures approach legal issues.
[T]o understand international law properly, to be able to negotiate, litigate, or even to communicate effectively in the arena of international law, it is necessary to understand that its origin and discipline, its philosophical context, and the mindset of many of its practitioners is “civilian” or a variation on that theme rather than common law in inspiration. To practice international law well, one should also be a comparativist.
Accordingly, no matter one’s allegiance in the ongoing debate concerning the proper theorization of the relationship between international law and domestic law (monist or dualist), it is recognized that international law and domestic law interrelate. Comparative law provides a modality to explore that interrelationship, serving as a gateway between legal realms. This post will explore that function of comparative law by highlighting the intertextual dialogue between international treaties and civil codes, elaborating on the civil law concept of usufruct (including its Roman law origins), and demonstrating how a comparativist approach can inform our understanding of international law, including the law of war.
Roman Law and the Law of War
Even within the context of the law of war, domestic legal concepts have relevance. An example appears in Article 7 of the Brussels Declaration of 1874.
The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.
Inclusion of the terms “usufruct” and “usufructuary” in this document was not a first appearance in an international legal context. As noted, Roman Law structured the legal thought of Grotius and, in his seminal work entitled On the Law of War and Peace (De Jure Belli ac Pacis), Grotius referred to the concept of usufruct in his discussion of State power and sovereignty. Usufruct and usufructuary are notable in the Brussels Declaration, however, due to the endemic nature of these terms. They are not universally recognized concepts insofar as they are organic to only one of the world’s major legal traditions: civil law systems based on Roman law.
The Brussels Declaration was never ratified and, therefore, never became legally binding. Even so, its reference to “the rules of usufruct” helped that concept take hold in international law. In the years after the Brussels Declaration, the concept of usufruct lingered in the international legal ether. For instance, in 1901, the Franco-Chilean Arbitration Tribunal resorted to the concept in a matter involving the Chilean occupation of Peruvian territory. In that case, an international tribunal looked to the laws of usufruct to determine Chile’s rights to guano deposits.
Most significantly, incorporation of usufruct by the Brussels Declaration influenced the language of subsequent international agreements, most importantly Article 55 of the Regulations annexed to Hague Conventions II and IV of 1899 and 1907 respectively (the Hague Regulations) which are now recognized, in certain respects, as reflecting customary international law. At the Hague Peace Conference of 1899, the delegates modeled Article 55 of the Hague Regulations on Article 7 of the Brussels Declaration, and Professor Yutaka Arai notes that the language seemed both understood and accepted. During negotiation, the reference to usufruct “attracted little discussion” and “the delegates were satisfied with voting on the Brussels text of this Article … .”
But, curiously, no international legal instrument expressly defines the concept of usufruct. International jurisprudence recognizes that the definition of usufruct must be drawn from national legal systems. One must, therefore, discern the meaning of this concept by studying the legal systems in which the legal concept of usufruct remains operative. This makes the inclusion of usufruct in international legal instruments a kind of wormhole between two juridical dimensions, pulling the jurist from the international legal universe—the broad system of rules, norms, and principles that govern the relations between States and other international actors—into the world of civil law in which abstract legal concepts are exquisitely set forth in civil codes, deliberated and developed before national courts, and further enriched through legal scholarship.
The Roman Law Concept of Usufruct
According to Roman law, usufruct permits a person to enjoy a thing and the fruits or products of that thing without acquiring full ownership. Gerald LeVan notes, “The institution of usufruct originated during the Roman Republic, though not until the Empire period did it become a general legal institution.” Roman law understood “ownership” to be the conjunction of three rights: the right to use a thing (usus); the right to enjoy the fruits of a thing (fructus); and the right to dispose of the thing (abusus).
An owner of a thing could transfer some or all of these rights, in various combinations, to others. For instance, an owner could transfer the right of use (usus) or they could transfer the ability to use and enjoy the fruits of a thing (the usus and the fructus) to another. To do so would be to convey a usufruct. The person to whom a usufruct (usus + fructus) was given is called the usufructuary. The person retaining only the abusus is called the “naked owner” or nu-propriétaire.
The Corpus Juris Civilis—a compilation of Roman legal works ordered to be compiled and created by the Byzantine Emperor Justinian (527–565)—outlines early conceptualizations of usufruct extensively. According to the Digest of Justinian, “Usufruct is the right to use and enjoy the property of others, at the same time preserving intact the substance of the same.”
This legal concept, forged in antiquity, thrives in modernity in the codes of civil law systems around the world. This, of course, is because Roman law served as a vital source and influence for the jurists drafting the great civil codes of the nineteenth century, including the Code Napoléon (the French Civil Code), which was enacted in 1804 and served as an archetype for civil law jurisdictions globally. Today, reflecting Roman legal influence, Article 578 of the French Civil Code defines a usufruct as “the right to enjoy things owned by another, like the owner himself, but with the responsibility of preserving their substance.” Similar definitions are employed in the Louisiana, German, and Greek civil codes.
The concept of usufruct is not unknown to the common law world, but it was never organic to it. The English common law tradition borrowed from Roman law to a limited degree, though it never fully incorporated the idea of usufruct. The term occasionally surfaces in the writing of common law jurists (such as Blackstone), but as Sir William Holdsworth reminds us, such references to Roman law institutions in the context of the common law tradition “are merely analogies of a superficial kind … .” Scholars observe that “English royal courts resisted the reception of Romano-canonical procedure that occurred in places like France and Italy in the thirteenth century and the more widespread reception of Roman substantive law in later centuries.” The legal institution of usufruct, therefore, never had an opportunity to firmly take root in English common law. In the garden of the common law, references to usufruct may occasionally sprout, but it is not a native species.[i]
Usufruct in International Legal Discourse
There is extensive discussion and interpretation of usufruct in international legal literature. Writing in 1912, Lassa Oppenheim described it as follows:
Article 55 of the Hague Regulations expressly enacts that a belligerent occupying enemy territory shall only be regarded as administrator and usufructuary of the public buildings, real property, forests, and agricultural works belonging to the hostile State and situated on the occupied territory; that he must protect the stock and plant, and that he must administer them according to the rules of usufruct. He may, therefore, sell the crop from public land, cut timber in the public forests and sell it, may let public land and buildings for the time of his occupation, and the like. He is, however, only usufructuary, and he is, therefore, prohibited from exercising his right in a wasteful or negligent way that would decrease the value of the stock and plant. Thus, for instance, he must not cut down a whole forest unless the necessities of war compel him.
This description by Oppenheim is an effective summary of the concept of usufruct, but it is only a summary, and one that provides only general guidance. International jurisprudence interpreting the concept has not elaborated more fully upon it. For instance, during the Flick Trial, the U.S. Military Tribunal at Nuremberg held that State property can be seized and operated for the benefit of the belligerent occupation for the duration of the occupancy because the enemy occupant has “a usufructuary privilege.” Though the tribunal did little to expand on the concept, it noted, “What is meant by the words ‘administrator and usufructuary’ does not call for any elaborate definition since the word ‘usufructuary’ has been taken over from private law and there the basic conception is quite clear and common to both Anglo-Saxon and Continental law systems … .” And as the discussion above highlights, the tribunal significantly overstated the tenuous Anglo-Saxon linkages to the concept of usufruct.
More recently, in his definitive work of the law of occupation, the eminent jurist Yoram Dinstein provides a discussion of usufruct containing multiple insightful vignettes and a survey of cases in which the concept was addressed, but without extensive reference to (or explanation of) its undergirding Roman law/civil law schema.
And humanitarian organizations, without reference to the concept’s Roman origins, have averred that the rules of usufruct allow only “a very limited use” of property. As demonstrated below, this interpretation may not be consistent with the rules governing usufruct as understood in the civil law systems within which they operate.
International legal literature, thus, generally provides little more than Oppenheim who noted that a belligerent occupying enemy territory must administer occupied enemy territory “according to the rules of usufruct,” and some seemingly authoritative statements regarding the subject are incomplete, errant, or imprecise. Understanding “the rules of usufruct” in their amplitude requires an exploration of ideas that transcend special, geopolitical, and temporal borders. It requires jurists to undertake a foray into Roman history and then traverse the realm of civil law.
The Civil Law Rules of Usufruct: A Synopsis
The civil law definition of a usufruct provides the usufructuary with rather expansive power over the property subject to the usufruct. According to Article 582 of the French Civil Code, “The usufructuary has the right to enjoy all types of fruits, whether natural, industrial or civil, which the object of which he has the usufruct may produce.” This is a notably wide-ranging grant of power over the relevant property. In the words of one judicial decision,
It should be accepted that the usufructuary’s right to use the thing is as extensive as an owner’s right. In other civil law jurisdictions, the usufructuary generally enjoys all of the rights that the owner enjoys. The right of full ownership is “exclusive,” meaning that the right to the enjoyment of a thing is attributed to a certain person, to the exclusion of all others. “The owner has the power to exclude all third persons from any use, enjoyment or disposal of his property,” even if the exclusion causes a third party to suffer some harm.
But this expansive grant of authority must always be understood in the context of a cardinal caveat to the power of the usufructuary: the responsibility to preserve the substance of the property. A usufructuary generally cannot transform the property or modify its mode of exploitation without the permission of the naked owner. In that regard, commentators have noted that the legal regime defining and regulating usufructs has always had to balance “two conflicting ideas—the general principle that the usufructuary, although entitled to the fruits of the thing, both natural and civil, must not impair its substance; and the notion that the usufructuary is entitled to the same enjoyment as the original owner of the thing.”
Accordingly, the usufructuary must act as a “prudent administrator” (or bonus pater familias) of the property and refrain from altering it without consent. Professor Olivier Moreteau succinctly describes the charge of the bonus pater familias to manage and use property “in such a way as not to prevent its transmission and use by future generations.” Further, civil law jurisdictions typically maintain that the usufructuary is “responsible for ordinary maintenance and repairs for keeping the property subject to the usufruct in good order, whether the need for these repairs arises from accident or force majeure, the normal use of things, or his fault or neglect.” And the usufructuary is also responsible for expenses that become necessary for the preservation and use of the property.
The ability of the usufructuary to use and exploit the property subject to a usufruct, therefore, has important limits. Legal regimes since the Roman era have struck a balance between the usufructuary’s powers and its responsibilities. For instance, with regard to natural resources, according to Article 598 of the French Civil Code, a usufructuary may enjoy the products of the mines and quarries that are in operation at the start of the usufruct, but not mines and quarries that have not yet been opened, “nor to peat bogs whose exploitation has not yet begun, nor to any treasure that may be discovered during the term of the usufruct.” This view is consistent with Roman law, which granted the usufructuary the enjoyment of mines and quarries so long as the usufructuary did not interfere with the cultivation of the soil.
The usufructuary, therefore, has significant power over the property subject to a usufruct, but that power is delimited by concomitant obligations of prudent administration, ordinary maintenance, and routine upkeep. The usufructuary must not abuse or despoil the property, nor may it allow the property to fall into decay. The property subject to the usufruct must be maintained and its substance preserved, and a failure to meet this standard obliges the usufructuary to compensate for the damage caused.
Further, civil law doctrine holds that a usufruct is a real right of limited duration. According to the Institutes, a usufruct is extinguished: by the death of the usufructuary (the person holding the usufruct), by its improper exercise, “by its nonexercise during the time fixed by law;” when surrendered to the owner by the usufructuary; by the usufructuary becoming owner of the thing (acquiring ownership); destruction of the relevant property (i.e., a usufruct over a house is extinguished by the house being burnt down).
These rules are maintained in modern civil law systems. For example, Article 617 of the French Civil Code provides for nearly identical modes of extinction. The echoes of Roman law in the modern French context are evident. Likewise, both Roman law and French law (typifying civil law doctrine) have made clear that a usufruct cannot exist in perpetuity, though it can last for the natural life of the person to whom it is granted. Accordingly, while a usufruct is not necessarily eternal, it can last a very long time. In the words of A. N. Yiannopoulos,“[t]he duration of the right depends on the life of the usufructuary.”
The discussion above provides only a general synopsis of the rules governing usufruct in civil law systems. The regime of laws defining and regulating the right of usufruct is detailed and complex, requiring the decisionmaker evaluating potential courses of action and outcomes to undertake extensive study of civil law systems and the rules set forth in relevant civil codes.
A Conscious Choice of Vocabulary
Given that the “rules of usufruct” are historically engrained emblems of civil law systems based on Roman law, their invocation in the context of an international law instrument is intended to do more than merely express a general idea. Many terms already existed at that time from which the drafters of the Brussels Declaration could have chosen to express the general requirement to act as a prudent administrator. As Pouria Askary and Katayoun Hosseinnejad note, although both the 1880 Oxford Manual and the 1863 Lieber Code addressed the rights and obligations of occupying forces, neither used civil law terminology or referred to usufruct. The Lieber Code simply describes the rights and obligations of the occupier without reference to any specific rubric. The Oxford Manual does the same and uses the term provisional administrator (administrateur provisoire). And yet the authors of the Brussels Declaration chose to phrase the rights and obligations of an occupier as usufructuary, a term of art encoded with legal meaning and invocative of a specific regime of law that would have been familiar to the learned scholars deliberating the text. And the authors of the Hague Regulations chose to maintain it.
The deliberateness of this choice is evident from an observation of the legal systems of the countries that assembled to draft the Brussels Declaration. The Russian delegates who proposed the initial language were from a legal tradition that was heavily influenced by “the European codification movement of the 18th and early 19th centuries, influenced by the Enlightenment.” This Imperial Russian legal tradition included the civil law concept of usufruct. All of the countries participating in the deliberations in Brussels (Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Greece, Italy, the Netherlands, Portugal, Russia, Spain, Sweden and Norway, Switzerland, and Turkey), had a legal tradition that, to some degree, incorporated a variation of the Roman legal concept of usufruct. Even within the context of Great Britain, though English law has no direct corollary, the law of Scotland (which is a hybrid or “mixed” civil law jurisdiction with Roman roots) recognizes the concept of liferent which is related to usufruct. The Turkish legal tradition of the 19th century also had Roman legal influences reflected in the Ottoman Land Law of 1858 which maintained a variant of usufruct (tassaruf), sharing many of the same qualities. (I have addressed tassaruf in other contexts here and here).
Conclusion
Analysis of the concept of usufruct is merely one of multiple examples of ways in which comparative law can assist in identifying, interpreting, and explaining “similarities and differences in how actors in different legal systems understand, interpret, apply, and approach international law.” As Ralf Michaels notes, there are different purposes ascribed to comparative law. “[I]t should inform national lawmaking, assist judges in the resolution of difficult questions, provide a basis for legal unification or harmonisation, or simply increase knowledge and extend awareness, especially in legal education.” Comparative law can also help us better understand and navigate other legal fields, such as international law and its subsets.
On that score, the references to usufruct in the Brussels Declaration and in the Hague Regulations provide an interdimensional moment that highlights the influence of Roman law on international law, requiring exploration of the substance of the former to fully appreciate the latter. Summarizations and encapsulations of the dense, detailed regime of law regarding usufruct can be helpful guides, but they are ultimately synecdotal and fail to permit a fulsome understanding of the epistemological foundations of the concept. To fully understand this unique legal idea of usufruct—to appreciate its constituent elements—one must burrow into the deeper structures of the legal systems where it finds its roots. There, in that rich substratum, one can find the history, philosophy, and tacit assumptions that reveal deeper meanings in the text and elevate our understanding of this and other fascinating legal concepts that swirl at the nexus of international and comparative law.
[i] The concept was nonetheless familiar, especially to those cosmopolitan jurists who studied other legal systems. For instance, Thomas Jefferson, a common law lawyer and third president of the United States, owned and read the French civil code and studied French law. Noted civil law scholar Professor Olivier Moreteau, Assistant Dean & Director of the Center of Civil Law Studies at Louisiana State University, highlights how Jefferson even once wrote, in a letter to James Madison, “that the earth belongs in usufruct to the living.”
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Dan E. Stigall is the Director for Counterterrorism Policy, Special Operations & Low-Intensity Conflict, Office of the Secretary of Defense (Policy). He is also a Distinguished Professorial Lecturer in National Security Law at the George Washington University Law School where, among other subjects, he teaches a course on comparative law and talks to his students about the influence of Roman law. Any opinion expressed is solely that of the author.
The views expressed are those of the author, and do not necessarily reflect the views or official position of the United States Military Academy, Department of the Army, Department of Defense or its components.
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Photo credit: Imperial War Museums
