Preface

This textbook is designed to be an accessible introduction to Roman law for students of any legal tradition. It is based on more than twenty-five years’ experience teaching Roman law at the Universities of Cantabria and Navarra in northern Spain, and at Emory University in Atlanta.

The great Goethe rightly likened Roman law to a diving duck that “hides itself from time to time but is never quite lost; always coming up again alive.”¹ The study of Roman law is emerging again in our own day because of the need, fostered by globalization, for a common legal vocabulary. As the highly refined terminology of the Roman jurists was unfailingly adopted by legal thinkers to conceptualize international law up to the eighteenth century, it should be adopted again for the conceptualization and development of a new global law. Roman law can serve today as an inspiration toward global constitutionalism, which is inherently postsovereignist, postnationalist, and postpositivist.2 That Roman law was also intrinsically presovereignist, prenationalist, and pre­positivist assists constitutionalists in eliminating from global constitutionalism any nonfoundational elements derived from a highly statist paradigm.

The subject treated in this textbook is classical law, roughly developed in the late Republic and the Principate. I have included references to post- classical and Justinian law where I have thought them beneficial for twenty- first-century students. I have said little about early Roman law because of its

Preface ix scant influence on modern legal systems. Many points of Roman law are still controversial, and certain questions about its historical development are especially so. I have tried, however, to avoid these disputed questions, and to lay out the most widely accepted contemporary views, even where I do not fully agree with them. That is so especially in the realms of property law and contract law.

The book is divided into two parts. The first attempts to situate Roman law within its historical context and to trace its development. I provide a brief, concentrated outline of the constitutional and social framework in which Roman law arose and was developed. The second part deals with the practice of Roman law. In selecting topics, I follow the Roman jurists who, without discounting criminal law, devoted more attention to private law. The latter- especially the law of property, the law of succession upon death, and the law of contracts- stimulated the legal imagination of Roman jurists as no other areas of the law did. Thus, as a matter of fact, private law dominated Roman legal debates, overshadowing public law. Indeed, Roman private law is one of the greatest legal accomplishments of Western culture. At the end of each chapter, I offer a bibliographic selection of books and articles on the subject. The reader, actually an English speaker, will understand my reasonable preference for books written in English. However, I have also included basic references to relevant books in other languages (German, Spanish, Italian, and French).

It will become apparent how much I owe to my beloved mentor and friend Alvaro d’Ors. I worked closely with him at the University of Navarra for more than twenty years and spent thousands of hours reading, analyzing, and discussing with him Roman legal sources.

Along with Roman legal sources, especially the Corpus Iuris Civilis and Gaius’s Institutes, I have also repeatedly consulted a few classical handbooks, textbooks, commentaries, and dictionaries in English in the course of writing this manuscript. By mentioning them, I want to pay tribute to the authors to whom this textbook is largely indebted: Buckland’s Textbook on Roman Law (3rd ed., 1963), De Zulueta’s commentary on the Institutes of Gaius (vol. II, 1953), Schulz’s Classical Roman Law (1951), Wolff’s Roman Law (1951), Berger’s Encyclopedic Dictionary of Roman Law (1953), Jolowicz and Nicholas’s Historical Introduction to the Study of Roman Law (3rd ed., 1972), Kunkel’s Roman Legal and Constitutional History (2nd ed., 1973), Thomas’s Textbook of Roman Law (1976), and Nicholas’s Introduction to Roman Law (1975). Although these could be considered, in a sense, old books, they remain vital for readers interested in the institutions and development of Roman law.

I have often consulted three recent Roman law volumes in English that should also be mentioned out of my gratitude and respect to the authors: The Cambridge Companion of Roman Law (2015), edited by David Johnston; Amne adverso: Roman Legal Heritage in European Culture (2015), by Laurent Waelkens; and The Oxford Handbook of Roman Law and Society (2016), edited by Paul J. du Plessis, Clifford Ando, and Kaius Tuori. Although very different in style, purpose, and methodology, the three volumes provide new and fresh approaches to Roman law.

Unfortunately, men and women were not equal under Roman law. For this reason, I prefer to use only male pronouns when referring to general circum­stances. Otherwise, an effort at courtesy and equity might have obscured some of the historical facts, such as they are. Romans had their own value system, which shaped not only the behavior of Roman citizens in society but also the Roman legal order. To teach Roman law does not, of course, imply any endorsement of their social standards or ethical principles. Slavery, misogyny, and the unrestricted power of the head of the family over the other members are some good examples of inhumane yet widely accepted social behaviors of the time. But the study of these institutions exemplifies the principle that some good can come out of evil (ex malo bonum). We do well not simply to judge the past, nor of course to rationalize it, but to try to understand it as well as possible, and so to learn from it.

I have incurred a number of debts in preparing this textbook. I wish to thank the students of Emory Law School who attended my courses on Roman law while I was writing the manuscript. Provocative questions and intelligent commentaries helped me to improve the text. I am deeply indebted to John Witte, Jr. for encouraging me to write this book, as well as for stimulating conversations and wise suggestions. I would like to thank Gary S. Hauk and Sherif Girgis for their constructive editing of my final text. I wish to thank Amy Davis-Poynter for her excellent work as an editor, Conchita Domingo for her self-denying support and assistance, and the anonymous reviewers for detailed comments and valuable suggestions. Lastly, I would like to thank Gonzalo Rodriguez-Fraile and the Spruill family in Atlanta for their generous support of my work.

Rafael Domingo Atlanta, December 12, 2017

Notes

1 Johann Peter Eckermann, Conversations of Goethe with Eckermann and Soret, vol. 2, trans. John Oxenford (London: Smith, Elder & Co., 1850), 162.

2 See Mattias Kumm, “Constituent Power, Cosmopolitan Constitutionalism, and Post­Positivist Law,” in International Journal of Constitutional Law 14 (2016) 697-711.

3 Max Kaser, Das romische Privatrecht, 2 vols., 2nd ed. (Munich: Beck Verlag, 1971 and 1975); and Max Kaser and Karl Hackl, Das romische Zivilprozessrecht, 2nd ed. (Munich: Beck Verlag, 1996).

4 Alan Watson (ed.), The Digest of Justinian, 2 vols. (revised English translation Philadelphia: University of Pennsylvania Press, 1998).

5 Bruce W. Frier (ed.) and Fred H. Blume (trans.), The Codex of Justinian. A New Annotated Translation, with Parallel Latin and Greek Text, 3 vols. (Cambridge: Cambridge University Press, 2016).