PREFACE

This is not intended to be a comprehensive textbook. The customary English elementary textbook of Roman law has been essentially an expansion of and commentary on the Institutes of Gaius and Justinian.

My purpose has been somewhat different. The main framework of the Institutes has become a necessary part of any thinking about Roman law, and to some extent about law in general, and an account which abandoned that framework would not be an account of Roman law. But within that framework I have attempted a shift of emphasis. It was not the habit of the Roman lawyers to make explicit the fundamental assumptions and distinctions with which they worked; nor could they criticize and evaluate their own achievement in the way that we, with our knowledge of its subsequent history and of the contrasts provided by the English Common law, are able to. I have tried to do both these things and also to point very briefly to some of the ways in which Roman law still survives in modern Civil law systems.

I have tried, in the first place, to draw out the fundamental assumptions and distinctions of the Roman law and to delineate its most characteristic institutions. In doing so I have of course stated many of its detailed rules, since without them the skeleton would lack life, but I have omitted much that seemed to me to be, in a book of this size, of secondary importance. Those who are already acquainted with the subject will each, I fear, find that I have omitted something which to him is fundamental and included something else which is trivial or abstruse. Such readers will also find that on controversial points—and owing to the peculiar character of the surviving evidence they are many—I have either muted the controversy or, more often, have stated without qualification what is no more than one opinion.

I have had to steer a course between two familiar dangers. On the one hand it would be an unjustifiable distortion to depict the Roman law of any period as clear and undisputed, and on the other hand it would defeat the purpose of an introductory book to express every qualification that strict scholarship would demand. Where I have made a choice between conflicting opinions I have thought it right to err on the side of conservatism even where my own preference might be for a more radical view.

I have tried, in the second place, to show the Roman law as a living system with both merits and defects, a system made by men who worked within limitations imposed by the conditions of the time and by their own methods of thought. And finally I have attempted to provide some signposts to the more significant contrasts to be found in the Common law and to the salient features of the Roman inheritance of modern Civil law. In a book of this size they can be no more than signposts, and I have made no attempt at exposition of the modern law. Moreover within the Civil law I have confined myself to the French and German systems, as being both the most divergent and the most influential. I have made almost no mention of Scots law. For this the explanation is in part my own ignorance and in part a sense that the influence of English law has been strong enough to blur the similarities and that of Roman law to blur the contrasts which I was seeking.

I have said little about early Roman law, both because the proportion of conjecture to evidence is very much higher than in the classical and later law, and the risks of distortion in a simplified account are correspondingly increased, and also because the interest to be found in the primitive law is often different in kind from that offered by the mature system, and it is the mature system which has influenced subsequent law.

I have abandoned the main framework of the Institutes in several respects, of which only one needs mention here.

I have given no separate treatment of Actions. This is not because I think Actions unimportant. On the contrary, I am sure that their main features are vital to an understanding of the law. But I think that in an introductory book those main features are best incorporated in the discussion of the sources and of the substantive law.

I am indebted to a number of friends for criticism and advice. From Professor F. H. Lawson I have derived more ideas and insights over the past dozen years than I can now hope to identify; and I am in particular grateful to him for reading the manuscript of the book at a time when it had become overgrown and for suggesting the points at which it could advantageously be pruned. I am greatly in the debt of Mr. G. D. G. Hall, who subjected the final draft to a penetrating and detailed criticism which was all the more valuable because it came from one whose primary interest lies outside the field of Roman law. I am most grateful also to Mr. D. L. Stockton and Dr. W. A. J. Watson for their advice on particular sections, and especially to Professor P. Stein who read the proofs and saved me from a number of errors and obscurities. For those in which I have persisted he is of course not responsible.

BARRY NICHOLAS Oxford, November ig6i

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

PREFACE

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