Introduction
From the second Punic war until the Antonine plague, the right of pledge evolved from a single possessory pledge over a specific physical thing to a highly versatile security interest that could be granted multiple times over the same asset, as a non-possessory pledge, over receivables, and even over an entire fluctuating patrimony.
The evolution of the Roman law of real security was largely triggered by transactional practices, which were accommodated into the existing legal framework by the jurists and supplemented or corrected by the imperial chancery. What was the result, at the end of the Principate, of these evolutionary processes? Did they lead to a law that was adapted to its economic environment?1 Did the law of real security contribute to economic growth? These questions are not easy to answer for legal historians without a background in economics. What legal historians can do is to examine whether there is enough similarity between contemporary and Roman laws of secured credit in order to make meaningful comparisons. Analytical tools developed by Law and Economics (L&E) and New Institutional Economics (NIE) can be usefully employed to work on Roman legal institutions (section 12.2). We can look, therefore, at what economic analyses of law have to say about the role of the law of secured credit in modern economies, and apply their findings to Roman law (section 12.3). It will appear that classical Roman law of the second and third century ad had all but one (public title registries) of the features which economists consider important for effective collateral laws.2 The negative effects of the Romans' failure to set up a public register for ownership and security interests in the western part of the empire may for a long time have been neutralized by contractual practices and social norms.3 This makes it plausible that, for most of the Principate, the Roman law of real security was capable of facilitating credit in a similar manner as its1 Adaptedness involves the extent to which a social pattern actually benefits the individuals who originated (inherited, borrowed) it' (Sanderson: 2007: 296-7).
2 For the Roman real security and the economy, see in particular, Pellecchi 2018 and Verhagen 2020.
3 Pellecchi 2018: 479-88; Verhagen 2020: 138-45.
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/9780199695836.003.0013 descendants do in modern economies and, therefore, that it did contribute to economic growth in the Principate (section 12.4).
12.2
More on the topic Introduction:
- Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p., 2018
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- Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p., 1976
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