PROHIBERE

Definition

In Roman and civil law, *prohibere* (Latin: "to forbid" or "to hinder") denotes the act of legally forbidding or restraining a person from doing something. The term appears primarily in two connected contexts: 1. As a general concept: the exercise of authority — by a magistrate, property owner, or legal right-holder — to prevent another from taking a particular action. The right to prohibit was itself a recognized legal power, distinct from the right to compel. 2. In the law of servitudes and property: the right of a landowner or holder of a legal interest to forbid a neighboring landowner from doing something that would otherwise be permissible. This negative character — the right to prevent rather than to compel — distinguished certain classes of servitudes and obligations in Roman legal analysis. 3. In procedural and magisterial contexts: the act by which a Roman magistrate or other authority issued a prohibition, often as the foundation for an interdict. The concept underlies the interdictal procedure, where the praetor could prohibere — forbid a course of conduct — as a remedy distinct from restitutory or exhibitory interdicts.

Common Confusion

*Prohibere* is easily conflated with the broader modern concept of injunction, but the two are not equivalent. Roman *prohibere* was a specific magisterial or proprietary power rooted in the civil law structure of rights; the modern injunction is an equitable remedy issued by a court with discretionary authority. Researchers encountering *prohibere* in translated Roman law sources or in early common law commentary should not assume the procedural mechanics of modern injunctive relief apply. Similarly, *prohibere* in the servitude context describes a right or power, not a remedy — the remedy came through the interdict that enforced it.

Why It Matters in Research

*Prohibere* surfaces in Law Mind sources primarily in three research contexts, each with different implications: First, in Roman law and civil law foundations: Any research tracing the doctrinal history of injunctions, negative easements, or servitudes will encounter *prohibere* as a structural concept. The Roman tripartite division of interdicts — *restitutoria*, *exhibitoria*, and *prohibitoria* — turns on this term. Understanding *prohibere* as a category is essential to reading Justinian's Digest and the Institutes accurately. Second, in servitude law: The distinction between positive servitudes (requiring a neighbor to permit something) and negative servitudes (conferring the right to *prohibere* a neighbor from doing something) is a foundational classification that persists into civil law systems and influenced early common law analysis of easements. Researchers working on the history of easements or restrictive covenants will find *prohibere* appearing in civilian commentary as the conceptual anchor of the negative servitude. Third, in historical English and Scottish legal sources: Writers trained in the civil law tradition — particularly Scottish institutional writers and English common lawyers citing Roman authority — used *prohibere* or its derivatives when discussing writs of prohibition and magisterial restraint. The writ of prohibition in English law, directed from a superior to an inferior court, carries a conceptual lineage traceable in part to the Roman term, though the procedural mechanisms diverged substantially. Trap for researchers: Latin terms in historical legal dictionaries are frequently cross-referenced without full definitions, with editors assuming reader familiarity with civilian sources. Encountering *prohibere* in an index or marginal gloss without surrounding context can mislead a common law researcher into treating it as a direct analog for a familiar concept when it is functioning as a term of art in a distinct legal tradition.

Historical Dictionary Support

Anderson's Dictionary of Law does not provide a dedicated entry for *prohibere* in the source material available. The entry fragment supplied concerns *profit à prendre*, an unrelated term. This is not unusual: Anderson's, like most English-language legal dictionaries of its period, gives limited treatment to Latin civilian terms that had not been fully absorbed into American common law practice. Researchers should not take the absence of a developed Anderson entry as evidence that the term was obscure — it was simply addressed more fully in civilian-tradition sources such as commentaries on the Digest and in Scottish institutional writers like Stair and Erskine. Where Anderson-type dictionaries do engage Roman law terms, they tend to translate mechanically without conveying the structural role the concept played in Roman procedural or property doctrine. For *prohibere* in its fullest sense, Justinian's Digest (Book 43, on interdicts) and Gaius' Institutes remain the primary reference points.

Jurisdictional Note

*Prohibere* as a technical term is most relevant in civil law jurisdictions (Louisiana, Quebec, and systems derived from Roman law). In common law jurisdictions, it appears primarily in historical and comparative legal scholarship rather than operative doctrine.

Related Terms