Stewardship and Dominium: How Disparate Conceptions of Ownership Influence Possession Doctrines

Abstract

The law is ambiguous regarding the level and extent of possession necessary to effect ownership. It can be argued that one’s conception of the nature of ownership influences this standard of possession. I further argue that the application of the concept of stewardship to questions of possession will aid in resolving the disputes between museums and indigenous groups regarding cultural artifacts. In order to demonstrate the relationship between one’s conception of ownership and its attendant standard of possession, it is useful to contrast different legal definitions of ownership, particularly the Roman concept of dominium, with a religious model of stewardship in property and see how each leads to different results with regards to decisions related to possession. This is observable in three doctrines related to possession, namely first possession, adverse possession and deathbed bequests, in which the effect that legal philosophies have on the law is discernible. In order to highlight the influence of dominium on the common law, I will use the idealist model of stewardship and Jewish law to show how in similar cases the Talmudic rulings are different than the common law’s because of each system’s ownership conception. This theory can then be applied to the properties where a stewardship conception is advocated.