34 A Note on Regulae Iuris in Roman Law and on Dworkin’s Distinction between Rules and Principles

LAURENS WINKEL (ROTTERDAM)*

In recent years a lot of research has been done on the topic of regulae in Roman law. Carcaterra, Martini and Peter Stein published books on the topic almost simultaneously,¹ and they were preceded by studies from Viehweg² and D Behrens.³ After 1966 stimulating contributions by Schmidlin and Norr fol­lowed.⁴ This “explosion” calls for closer examination, for it could be interest­ing to ask if there is a link with the modern discussion in legal scholarship on the role of general principles.

It is possible that the studies on regulae in Roman law were inspired by the discussion following the publication of the influential book of Josef Esser⁵ in 1956. Although there is not much direct evidence for this supposition, the influence of Viehweg’s book, however, can easily be established.

* I thank Professor Duard Kleyn (Pretoria) and Wouter Veraart (Rotterdam) for their comments on an earlier draft. See, for a survey of the recent discussion on regulae, my article “The Role of General Principles in Roman Law”, Fundamina (Pretoria, 1993, published in 1996) vol. 2, 103.

¹ A Carcaterra, Le definizioni dei giuristi romani. Metodo, mezzi e fini (Naples, 1966); R Martini, Le definizioni dei giuristi romani (Milan, 1966); P Stein, Regulae iuris, From Juristic Rules to Legal Maxims (Edinburgh, 1966); see also idem, “The Digest Title de diversis regulis iuris antiqui and the General Principles of Law” in Essays in Jurisprudence in Honour of Roscoe Pound (Indianapolis/New York, 1962) 1 (= P. Stein, The Character and Influence of the Roman Civil Law (London, 1988) 53).

² Th Viehweg, Topik und Jurisprudenz, Ein Beitrag zur rechtswissenschaftlichen Grundlagenforschung (1952; 4th edn, Munich, 1969).

³ D Behrens, “Begriff und Definition in den Quellen”, (1957) 74 SZ 352. Behrens refers to Nicolai Hartmann, Aristoteles und das Problem des Begriffs (1939); he does not refer to modern legal schol­arship.

⁴ B Schmidlin, Die romischen Rechtsregeln (Cologne/Vienna, 1970); D Norr, “Spruchregel und Generalisierung”, (1972) 89 SZ 18; see also B Schmidlin, “Horoi, pithana und regulae—Zum Einfluβ der Rhetorik und Dialektik auf die juristische Regelbildung”, (1976) ANRW II 15 101; idem, “Regulae iuris, Standard, Norm oder Spruchregel? Zum hermeneutischen Problem des Regelverstandnisses”, in Festschrift Max Kaser (Munich, 1976) 91.

⁵ Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (Tubingen, 1956); idem, Vorverstandnis und Methodenwahl in der Rechtsfindung (Frankfurt, 1970; 2nd edn, 1972).

In the past there was often a remarkable resemblance—at least in methodol­ogy—between continental legal theory and the study of the Roman legal sources. This resemblance is particularly strong in the German legal literature. For example, at the beginning of this century, the discussion there on legal prin­ciples was extremely closely linked with the study of Roman law. At that time what was known as the Freirechtsschule was led by professors in Roman law: Eugen Ehrlich in Czernowicz and Hermann Kantorowicz in Kiel.^[1062] But in today’s German scholarship Roman law is also regularly referred to. Viehweg’s book, which is mainly devoted to modern law but also contains an interesting chapter on Roman law, is a good example of this phenomenon.^[1063]

A problem linked with the regulae in Roman law is that of rationes decidendi. The rationes decidendi of the republican Roman jurists were studied thoroughly by Franz Horak.^[1064] The fact that many decisions of the classical Roman jurists were not rationalized explains why Horak limited himself to the rationes deci­dendi of the decisions of Republican jurists.

We could deduce from this that analysis of Roman legal sources always needs to be done with new criteria, dependent on new scientific discussions. This reflects on the well known question of whether it is allowable to use anachronisms in legal history, a question which was discussed by Hoetink.^[1065] Anne Barron defends this argument when commenting on modern legal philosophy: “Legal history does not speak directly to us, it is made meaningful only by the actions of an intermedi- ary”.^[1066] We could even say that legal history can fulfil its role as a critical form of comparative law only if it is constantly linked with actual legal problems.^[1067]

In legal theory in the common law countries, legal history is definitely less important than on the continent. This is partly because Roman law was never very influential in England;^[1068] the reception of Roman law is predominantly a continental phenomenon.^[1069] In Anglo-Saxon legal theory we often find an out-

Regulae Iuris and Dworkin’s Rules/Principles Distinction 415 spokenly unhistorical tendency, and quotations from continental jurisprudence are quite rare. This, however, does not apply to Finnis^[1070] and Rawls.^[1071] Finnis often goes back to ancient and medieval legal theory, especially to Thomas Aquinas, and Rawls is certainly influenced by the kind of Aristotelianism revived in modern ethics by Anscombe^[1072] and Kenny.^[1073]

Dworkin is an example of someone who has, if I may say so, an unhistorical approach to legal theory. Nevertheless, Dworkin’s treatise on the difference between rules and principles can, in a romanist’s view, lead to the question of whether it would be meaningful to use the distinction between “rules” and “principles” in an analysis of Roman regulae.^[1074] According to Dworkin, we have to distinguish rules (although with implicit or explicit exceptions) with an absolute yes or no character in a specific field and, on the other hand, principles that have limited validity in a wider field.

Moreover, Dworkin claims that his distinction between principles and rules is a logical one.^[1075] This claim also leaves room for some doubt. Dworkin’s start­ing point is the decision of a court in New York, Riggs v. Palmer in 1889.^[1076] The question there was whether a grandson who had murdered his grandfather could inherit under his grandfather’s will. The court came to a negative answer by invoking rather vague “general, fundamental maxims of Common Law”, classified by Dworkin as a “principle”. But if the court had had regard to Roman law (D. 34.9.3 or CJ 6.35), or to the “body of learning” using a comparative method, the “principle” in this case could have been better substantiated. If the court had taken account of examples in civil law systems where recurrence to general legal principles was explicitly mentioned, its decision would have been less surprising. One could refer, for instance, to the well-known article 1 of the Swiss Civil Code, or to article 1:104 of the General Principles of the Lando Commission.^[1077]

There is more to say, however, against Dworkin’s assumptions about rules with a yes or no character. He overestimates the ease of making fixed provisions

in a statute which is concerned with issues other than formalities, and the degree to which it is possible to foresee the whole field of application of a legal rule.

There is an interesting link here with a discussion on the character of the legal order as such which we find, an early as the second century AD, in an opinion of the Roman jurist Neratius.

There is yet another reason why Dworkin’s distinction between rules and principles is not very useful for a historical analysis. This comes from the use of the notion “validity”, which is far more problematic than he wants to recognize. This is partially a question of language linked with the notion of legal validity.^[1080] Its heuristic value is limited, because this concept does not translate with the same implications into various languages. Munzer, writing on this subject,^[1081] drew attention to the fact that validite in French is defined most commonly in a negative way. He also pointed out that the etymology of the German word “Geltung” is quite different from the Latin, and French, etymology. In French, validite might have a purely factual meaning, but in German we can distinguish two forms: a factual positivistic view, and the normative approach of a legal rule. This is perhaps also the reason why there is confusion between legal phi­losophy in the common law and in the continental European context on this matter. For example, the role of principles is thoroughly discussed in the author­itative book of Karl Larenz on legal method, but no mention is made of Dworkin’s theories.^[1082] The same is true for Dworkin, who does not refer to Larenz!

When we look at the distinctions made in the previous paragraphs we come to the conclusion that only a few regulae can be classified as rules in the sense of Dworkin. This could include the regulae of later classical Roman law, where fixed exceptions were formulated.

It is important to keep in mind that Roman law really only became a hier­archical legal order at the end of the Principate (third century AD). This, as far as I can see, constitutes an important difference from English common law. There we have, almost from the beginning, a legal hierarchy in the judi­ciary, which means that the verdict of a higher judge is a precedent, a preced­ing judgment which amounts to a rule.^[1084] The rule of precedent, however, in Roman imperial rescript practice, is not entirely clear and is heavily debated.^[1085]

In Rome, at the beginning of the Principate, a legal source—the authority of the jurist—until then independent, was brought under a subtle form of imperial control by means of the ius publice respondendi.^[1086] A second autonomous legal source, the praetorian edict, established yearly on the basis of the iurisdictio of the Urban Praetor, was brought under imperial control after Julian codified it, when the edictum perpetuum was fixed once and forever by decree of the Senate proposed by the Emperor Hadrian. Through these measures, and through the replacement of the formulary procedure by the cognitio extraordinaria, there was from the mid-second century onwards imperial control of the administra­tion of justice, but there was as yet no clear hierarchy of legal sources. This was partially established in the Law of Citations of AD 426, but finally only in Justinian’s legislation.

Interesting parallels have been drawn by H Peter between the different stages of development in Roman law and English common law.^[1087] He indicated that the period of the Principate had its parallel in England from the sixteenth century until the Judicature Acts of 1873/1875, while the period of the Dominate, dur­ing which ius and leges were amalgamated, is comparable with modern times in England where there is a merging between common law and equity. Other scholars have studied the use of case law in common law and Roman law,^[1088] or the way in which statutes are interpreted.^[1089] The many ways in which we see a similar development in Roman law and common law make even more tantaliz­ing an analysis using the same concepts as those of Dworkin.

The application of Dworkin’s distinction between “rules” and “principles” to Roman law is, however, weakened by the fact that many decisions of the Roman jurists are hardly explained. It is therefore quite difficult, or even impossible, to identify the ratio decidendi of a decision. And even if we do have a ratio deci­dendi, it is hazardous to draw conclusions about the possibility of generaliza­tion. In his critical review of Schmidlin, Norr^[1090] has already drawn attention to the fact that the word regula itself is not always decisive for showing the pres­ence of generalization. This is another reason why Dworkin’s distinction does not contribute much to the evaluation of the regulae in Roman law.

Could we conclude then that the distinction between “rules” and “principles” is only applicable in common law? One is tempted to do so.