Rethinking Civil-Law Taxonomy: Persons, Things, and the Problem of Domat's Monster

Abstract

Since the time of Gaius, the civil law has been based on a fundamental structure, which divides private law conceptually between persons, things, and actions (or more recently obligations). This is usually viewed as creating a closed system into which any private-law matter must by definition fit. It leads, however, to a view of legal categories as bounded boxes, and of legal taxonomy as a process of making either/or decisions about where something fits. This article rethinks civil-law taxonomy by focusing on the boundaries or interfaces between conceptual categories rather than on defining the concepts themselves. It argues that the three civil-law categories of persons, things, and obligations are in dynamic interaction with each other, a rhetorical and normative process through which each category influences and inflects the others. Classificatory problems – particularly cases that fall between the categories of persons and things, such as human body parts or the right to privacy-change in useful ways if we view classification not as placing things on one side or the other of a clear line, but as weighing and assessing the mingling of different concepts. Blurring of boundaries should thus not be understood as a failure of taxonomy, but rather as an admission that the richness of human experience cannot be reduced to a series of either/or choices.

Keywords: Civil Law, Personhood, Persons, Property, Obligations, Legal Categorization, Legal Taxonomy, Domat, Gaius