Introduction
A general methodological problem of legal history is ‘whether it is the law that influences patterns of social or economic behaviour or it that is shaped by them’.1 Can this be explained in terms of cause or effect? The answer is that it must be explained in terms of reciprocal cause and effect.2 Legal change is unquestionably influenced by socio-economic factors, although in modern scholarship there is still much controversy on the degree and nature of this influence.3 At the same time there can be no mistake that socio-economic patterns of behaviour are influenced by law.
The state even tries—both in the present and (to a lesser extent) in antiquity—to influence these patterns through legislation, although not always successfully. The interactions between law and society, in the past and the present, are an exciting area of scientific research.4 One of the main purposes of the science of legal history is to explain how legal institutions interacted—synchronically (functioning of law) and diachronically (evolution of law)—with other parts of society in the past. Economic theories of law—Law and Economics (L&E) and New Institutional Economics (NIE)—are valuable for analysing the functioning of law in its economic environment.5 Social systems theory, into which evolutionary theory is integrated, can provide a new perspective for legal historians interested in long-term historical processes of legal change and continuity. The use of social systems theory, evolutionary theory, and economic theories of law, however, is far from generally accepted in legal history. Care has therefore been taken to assure that the results reached by my legal-historical research can also stand up without the prop of any metajuridical perspectives: they only place them in a more varied light, revealing patterns that otherwise would perhaps have remained hidden from view. In this chapter, after having1 Johnston 2022: 33. 2 cf. fOr the Roman law of real security, Schulz 1951: 403.
3 See, e.g., Cotterrell’s (2006: 110) discussion of Alan Watson’s view that ‘[t]here is no necessary correlation between the law and the society in which it operates’ (Watson 2007: 26).
4 For Roman law and society, see Polonen 2016. 5 Section 12.2.
Security and Credit in Roman Law: The historical evolution of pignus and hypotheca. Hendrik L. E. Verhagen,
Oxford University Press. © Hendrik L. E. Verhagen 2022. DOI: 10.1093/oso/9780199695836.003.0002 looked at legal evolution from the perspectives of systems theory (section 1.2) and socio-cultural evolution theory (section 1.3), I will carry out a closer examination of how Roman law co-evolved with the Roman economy (section 1.4). This chapter will conclude with a brief review of the economic functions of pignus and hypotheca (section 1.5).
1.2
More on the topic Introduction:
- Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p., 2018
- Chapter 1 Introduction
- Introduction: Themes and Literature
- Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p., 1976
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