Roman Legal Tradition and the Mismanagement of Hunting Resources

Abstract

Hunting and game-preservation are interrelated: hunting must respect the intentions of game-preservation, and game-preservation must rely on hunting as one method to achieve its intentions. HASENKAMP (1995) applied the Economic Theory of Common Resources to the problem to provide conclusions about the management and conservation of hunting resources. These conclusions are reflected in the existing relevant legal hunting setting in Germany. German Law contains legal principles that confronts the hunter with the objectives of hunting preservation and held him the responsibility for pursuing these goals. In our paper, we derive a model of hunting management, adapting the GORDON/SCHAEFER fisheries model. The conclusions of the model, similar with those of Hasenkamp, are confronted with Portuguese hunting regulation. We conclude that Portugal has a Roman legal tradition with respect to hunting propertyrights. To the Roman conception, the wild animals constitute res nullius (things without owner) that all men can appropriate by ocupatio. The classification of free land implicates the idea that the hunter has the freedom of access to hunt in other’s land, although respecting imposed norms. This tradition of open access is the root-cause of hunting depletion. But, at the same time, the legislator sees it as a form of giving the hunters without land, the possibility of enjoying this activity. This is compatible with the Portuguese tradition, which almost attributes a personality right to the right of hunting.