 something a bit more serious rights of way is the topic and Hans asked me once whether that could be an interesting legal issue ways out of rights of way do we have ways on foreign on other properties so why is it interesting I was lucky to to take up this subject because I thought that could be an interesting issue which leads to ways out of the state which is my my big interest as you recall I'm still working on a class action it's still not done it's still being prepared and where many victims of our Swiss federal government I will state come together for a class action defending this that strange organization called Schweitzrische Eidgenossenschafts with confederation actually the federal state and now the legal remedies requested there is for today just the first one of interest so the main request is not that this organization shall be dissolved or something like that but that the plaintiffs have the right to withdraw out of this organization to say it a bit a bit disrespectful it to leave the club without being obliged to leave the country so to think that it's an organization that state is not the country or the people of the country it's an organization like some firm and it's to challenge the mandatory membership this is the idea of this class action and now by preparing things of such a concept suddenly comes the objection but did you think about a very practical question and this is the following as you know I like structures like that so again we have this situation we have the state with the members do I have a pointer no with the members you see these these people there that are the members this is shown with these lines there and why are that conglomerate many things are organized for instance you see this here down these common issues mainly the land infrastructure of streets and so on belongs to the state beside many other things you see that over there and now you see if I'm here the blue one if I want to go to my neighbor or to friends I have to cross this common land the common streets to get there others to have to do that and then of course once we declare our withdrawal out of this club maybe the club government says okay we are open for new ideas we let you go but consider this once you cut your membership I say property I'll enjoy saying property this time because you always talk about property rights you know this morning for instance we heard about a lot about the importance of property right that that's a sort of absolute position so the system is the state who says I am the owner I have property this time it goes against you don't trespass my property you're still welcome to come back to our club but once you do not want to be there you're out so you're sort of in your own prison your house is now your prison you won't get out because after the house after your garden comes my property and you do not have the right to go over this and therefore it's interesting to ask do we have rights of way through such a situation now let's put let's put it a bit more abstract simplified to to go through these aspects we have this situation here again the state there with his property monopoly so to speak on his state land we have this one here who wants to get out and who wants to have a right of way and we have the state who says no no trespassing property and now this one says but there are old principles of law that I have a right to cross your land old principles of law this sounds very solemn and important but where are these old principles so show show them to me and this is what I wanted to try let's really go very back to those roots where these these legal principles are coming from it is to old rule Roman law about two thousand five hundred years ago we have this basic structure of familiar of part of familiar who is the I do not say the owner because at that stage property is not the issue he who is who is the one at the top of this group there are family and formulae it is servants therefore this entity is called family on this is not family in in a in a in a narrow sense of parents and children this is a broader group with maybe many parts of a bigger family Pecunia this is interesting the bird Pecunia which means the cows cattle and because these are value aspects it's no accident that Pecunieri you know this this world we know has a economic aspect still and then we have these these people we have the cows these are the horns I try to to a sketch there you see one cow just trying to to run away though so this is familiar and part of familiar this is not very important for the question of property or so it becomes only important once another such club and also such family comes in of course there are many such families the next farm maybe is not right beside like in an urban situation but it's there and now it's still no question of property but now this cow there do you see that cow now comes what should come this cow goes faster or far and now you see these parties family ours who are somehow worried what about this cow whose cow is it they come together and now what happens now what what must come of course now comes up the question who is let's say competent for this beast something like a distinction between a subject and the object in the legal sense perhaps in a competence sense and now what happens what happens is Manu Kipare Latin Manu with the hand keeper to take to take with the hand what do they do these two this one he takes maybe one horn you know and he says may um essay are you are you I say may um essay this is mine this is a formula actually this comes out of the situation that's mine I take it but this is then refound in a long tradition in legal formulas and of course what what makes the other one because he speaks Latin to he says may um essay are you and he takes the other horn perhaps this is the situation which reminds me to what we heard this morning from Stefan Kinsella who is the owner of a contested resource now now comes up the question of who is the owner before we did not have this question at stake how to solve this problem now let's assume that some neighbor who hears this shouting comes by and tries to moderate this discussion maybe they find they find the solution maybe he asks around and I think this is really your cow the on the blue side and he gives this blue man Monkipium this comes out of Manu Kipare now he is the entitled Manu Kipians this is Manu Kipium this is the earliest word of what for us is property property is not propietas is not yet the notion at that time it's Monkipium so he has Monkipium to this cow that on the left side there so one can say Monkipium propietas in a way is a result out of mutual contestation it's the litigation the conflict that creates these rights and this is the way while the Roman law I marked it here calls these important assets raise Monkipi not all assets not all values are raise Monkipi are important values that must be transferred in very special rituals only slaves cattle and land and by the way which is an interesting remark by the way this this ritual of solving conflict is later on developed as the formality to transfer important things to transfer raise Monkipi so if you want not to to catch the cow that has run away but if you want to transfer a cow you have the institution of Monkipatio and then you sort of reconstruct that situation of a of a contestation of a difference you had it is some third person must be present usually he has a Libra Libra a scale to wait and as is playing a role as which is copper and this goes back one things to early rituals when it's about to exchange something maybe it's not clear whose cow is it then then this mitigator says okay you take the cow but you pay him something and and therefore this Monkipatio is sort of of formality to transfer land or slaves or cows and one can say that out of this from the settlement of mutual contestation comes a form of mutual attribution so it's it's not some abstract principles that come from somewhere this is why what I want to show that are applied on something but it's something these are structures coming out of the conflict bottom up so to speak and not top down now we are still at that time and this time it's not a cow but a slave that also happens where it's unclear and of course this is just to repeat you know the other one too Manu Kipre the third one that comes in and he says okay this is you slave you have Mancipium on this slave but we want to hear something about our rights of way so what has this to do with our rights of way now let's say let's take an example where not the slave as such or the cow as such is contested but something else it is that there is of course a cow and the slave walking over there but the problem is knit not these two things things but that they walk this way and that what is interesting it is very earlier times already you find some conflict that arises because he probably walks on somebody else's land this other one comes and says me miss a are you the other one says no no me um of course not your land I do not contest your land but my is the right to go with my slaves and cows that way to some pasture pasture land elsewhere or whatever to a neighbor I want to and I have a right to do it's my right to do it and these very same formulas are found in these old cases also not only for things but also for the right to transfer to pass on a place here to they call it manu keeper maybe it's not manu but with the feet but he is on there the other tries to stop him and the question comes up who has the right to it and then we have again this third Libri pens who comes in and now what does he what what his is his conclusion he says man keep him off the land is still on the right side over there but he says depending on the situation what this way is concerned there are notions in Latin either or octos octos is more with with cattle and so on it was just to walk via or aqueducts to to to let flow water on some some place for that this third moderator says he has monkey biome he has not just just some some weak right he has monkey biome for this way or let's leave open if just to use its way sometimes it's it's called really the way as such this stripe of two or three meters whatever or sometimes it's called as just the right to use that stripe but monkey biome of this it so here too one can say out of this settlement of mutual contestation we have a mutual attribution of monkey biome mutual in as far as the land there the way here and then actually the same can be followed during the development of the Roman law a bit later in the classical Roman law this is the first time that it's called propietas this notion here of an old institution comes in somehow later sometimes they call it dominium you see here the left side the other one the neighbor whoever this neighbor is also has monkey biome dominium propietas for his land and then against onus which is sort of payment compensation this one of the left side has together with his his right on the land he has also a right on the way through the neighbors land and they call it monkey biome propietas propietas so ownership and the other one has sort of reduced ownership because he has to let let it free for his neighbor then again later this is also an example how a certain scientific abstraction takes place how these old rural situations are then transferred into a rather abstract theoretical system but on the basis it's still these old conflicts and their solution so they call the same thing now differently for instance I I'm talking about the real classical Roman law this is this about 300 400 after Christ use comune which is in the Middle Ages when this was re-discovered so to speak and and even later in the Enlightenment times where these these scientific structures were developed further then they called it dominium directum they made different notions here dominium directum which is on the land as such and what these other dominium or propietas is concerned they called it dominium utile dominium to use or servitus servitus that that that serves you know it's the same the same word and on the other side you have the one who is charged with this servitus and he still has propietas which actually could give him the right to prevent the other one but it's charged with the neighbors service so this means that he can forbid him to to walk on his land in general but he must allow him to go at a place suitable for that to to cross this this land this is the situation a bit later then let's follow it in this civil code tradition that in the two days actual civil law traditions of course now we call it definitely property as a general right we have servitude servitus be it by law by contract as a limited right and namely in case it's necessary for this neighbor on the left side to go there he has a right by law not only by contract even if there is no contract he has the right to cross that place against compensation I do not read down all this but just an interesting example you find that in all codifications in the Swiss civil code in the German code everywhere and this is an example which is interesting because it's a civil code example of America as you probably know Louisiana code this is one one exception within the common law tradition of the states and where there is a French civil codes tradition and so this is an example you find in other civil codes of Europe as well and and this is then an example in section 3 of that code article 609 you have for instance now this sentence the owner of an estate that has no access to a public road or utility may claim a right of passage of a neighboring property to the nearest answer one and he is bound to compensate his neighbor if there are new or additional maintenance burdens this shall be the responsibility of the owner of the dominant estate so the one who has this right of passage and in the next paragraph you see here that this right of passage shall be suitable for the kind of traffic or utility that is reasonably necessary so the one who has to write he cannot exaggerate but what is reasonably suitable for him that he should be entitled to and many others I have five minutes so I must abbreviate a bit and other aspects that are mentioned in these in this code here now the same is true in the common law tradition which is also influenced by the Roman law of course but maybe less directly than the civil code tradition here you have actually the same schemes with slightly different terms but of course you have property sometimes these rights right of way rights of passage are called as a minimal easement it's like it's the servitus we had the servitude but but very very reluctant in a reluctant way and not too intrusive which then is called a minimal easement in the land in case of emergency in case of need so actually it's the same scheme against compensation so one could say if we look back now at this development what is the rationale of all this the rationale which had as consequence that these schemes emerged out of these conflicts the rationale has to do that here on the left side we have some need emergency may mean even in case of need not just by if you want to but if you really have to if you need to that then you have a right of passage if the next one the neighbor one has sort of a monopoly he has the possibility in principle to prevent you to go there then if you do not have other possibilities he has just the monopoly for you to come to some other place in that situation you have the need he has the monopoly then you have this right of passage this is not just because I like it but because it comes out of this of the fundamentals of this property scheme so we have that monopolist over there and once we talk about monopolist of course we come back to our big monopolist we have here it is the state and so we are coming closer again to the picture we had at the beginning we have now this old rule I mentioned in the beginning that is confirmed so to speak we have these rights of way in case of need we have over there the monopolist beside others on public street infrastructures and so on so with with land that is suitable for such a use so that the one on the left side shall not just cross some other land but goes the way that is suitable for this that which is already prepared as a street as infrastructure so if this is the case then the rationale is that then he has this right to go there now if that is the state over there he has no other monopolies not only these monopolies here so if you apply the the same rationale on the situation all together one could say maybe it's more than just right of way through these public in this case public streets but maybe it goes further and one could say the same rationale means that if you have the need or maybe even emergency and as long as that special neighbor you have here called state as long as this neighbor has a legal or just factual monopoly in things for instance public infrastructure but maybe also for public transportation public health public security as long as private security services are not yet developed too much etc etc many other things so I could what one could say that out of these principles that once you have a need in certain services supplied by the state and once he has a monopoly in these services then you have a right to use them against compensation of course but only compensation of these uses and not general taxation for any strange ideas and this of course gives you at least an additional argument against the membership of that club you do not need to mention membership in order to use these these services you just can't get it because you have that old right from the Roman rural right to use this services and if you look at it that way then it's not only a right of way rights of ways then you really have ways out of the state thank you