A Systems Perspective
Wieacker has observed that the ius civile developed into a ‘subsystem' (Teilsystem) within the Roman political, social, and cultural order, in particular through the unique phenomenon of Roman jurisprudence.
Legal history demonstrates that there is an interdependence between the subsystem and the system as a whole (Gesammtsystem). On the one hand, the conscious experiences and intentions of the jurists and the judicial and legislative institutions were conditioned by ‘reality as a whole' (Gesammtwirklichkeit). On the other hand, the legal subsystem has changed this reality through its legislation, its law developed by the magistrates, and its jurisprudence.[25] The division of society into subsystems (e.g., law, economy, politics, religion) is fundamental to the theory of social systems developed by the German sociologist (and lawyer) Niklas Luhmann.[26] Social systems theory analyses the operations, structures, and evolution of the subsystems of society and the relationships between them. To answer the question whether Luhmann's social systems theory can successfully be applied to (ancient and modern) society as a whole is far beyond my expertise. From the perspective of the legal system I can only say that it provides a useful interpretative scheme for analysing the interactions between law and economy in any society, both ancient and modern, in which the legal system can be regarded as a separate subsystem. Above all, social systems theory provides a good model for analysing how the origin and evolution of legal rules and institutions are often triggered by economic circumstances,[27] while at the same time they are conditioned by the internal structure of the legal system.Law as a subsystem of society
Lawyers usually think of a legal system in terms of a coherent, well-ordered, and hierarchical set of interacting principles, concepts, and rules.[28] Thus Kaser's introduction to Roman law states that a system which is clearly governed by logical principles and is adapted to the needs of legal education can only be found for the first time in Gaius's Institutes, with its subdivision into personae, res, and actiones.[29] [30] [31] Luhmann operates with an entirely different understanding of a legal system. But we do not use ‘system' like some lawyers who mean by it a context of coordinated rules. We mean by ‘system' a context of factually enacted operations, which have to be communicated because they are social operations, whatever defines them—and in addition to that—have to be communicated as a legal communication. This means, however, that the basic distinction is not to be found in a typology of norms or of values but in a distinction between system and environment.“ According to Luhmann, a legal system consists of communications, which can be found not only in the traditional sources of law (legislation, court decisions, legal opinions, etc.) but also in private transactions (e.g., contracts, conveyances, testaments). These legal communications are processed within a self-referential legal system, through procedures internal to that system?2 In functionally differentiated societies, the interactions between the legal system and its environment—which is composed of other subsystems, such as the economy and the political system—are determined by the ‘autopoietic' (i.e., self-producing) nature of the legal system. Autopoietic systems have their own internal structure and processes, creating, modifying, and extinguishing their own elements.13 This so-called operative closure ‘implies that the law produces by itself all the distinctions and concepts which it uses?4 The ways in which operative closure is achieved within a social (sub)system are different, depending on the differing functions and codes of that system. The function of law is the stabilization of normative expectations: the law indicates what people may expect that ought to occur.[32] This function is, however, also performed by other institutions and subsystems, such as tradition, morality, politics, and religion. What distinguishes legal communications from other social communications, and what makes law an autonomous subsystem of society, is that they are concerned with law's code. Roman jurisprudence as an autonomous discipline The theory of autopoietic legal systems can be regarded as a reformulation of the doctrine of the autonomy of law.[37] Can Roman law be regarded as an autonomous legal system? In Roman society it was the law which first differentiated itself from the ‘primordial soup of societal communications' and created, maintained, and developed its own separate language.[38] [39] Once rules are no longer defined by divine revelation (as in Rome where rules were ‘interpreted' originally by the priests^ or social custom but are produced by distinctly legal acts (legislation, judgments, legal opinions), they become part of an ‘internal reproductive cycle'?[40] In Rome this resulted in an increasing legal complexity, requiring the existence of a corresponding expertise: the emergence of jurists as specialists in the law. The jurists developed legal knowledge (jurisprudence), resulting ‘in abstractions, which rendered the law and its self-referential concepts independent of plain facts and made a lawcentered evolution possible’?[41] The following observation by Luhmann applies to the works of the late republican and classical jurists: The specification of the way in which arguments refer to legal materials in the legal system is the true carrier of the evolution of the legal system and the breakthrough to an autonomous legal culture, which can even be differentiated from morals, common sense, and the everyday use of words?[42] It was in the Rome of the late Republic that jurisprudence, for the first time in human history, became an autonomous discipline, distinguishing between legal precepts and religious, social, and moral ones?[43] Roman jurists would primarily search for values which could justify legal solutions within the legal system itself and they were careful to separate these solutions from extra-legal factors which determined or influenced them?[44] For the jurists, legal rules had become ‘a distinct cognitive field, replete with its own figures of thought?8 The jurists developed a new ontology, constituted by a limited number of forms—possession, ownership, usufruct, pledge, sale, partnership, obligation, etc.—which ‘established itself as the motor of any development of ius’.29 This corresponded not only to the needs of an autonomous jurisprudence in relation to other disciplines but also to the ‘fundamental limits of the law' which the jurists recognized in their opinions?0 It was not only the jurists themselves who regarded law as autonomous: the autonomy of the law was a ‘fundamental belief within Roman society’.[45] The ‘isolation’ of Roman law A well-known observation by Schulz is: ‘[t]his isolation of private law had its disadvantages, but except in isolation private law could not have been elaborated in its classical purity?[46] [47] The ‘isolation’ of Roman law should, however, not be taken to its extreme. Like other members of the Roman intelligentsia, the Roman jurists were strongly influenced by Greek philosophy in their elaborations of legal concepts, distinctions, and principles, although their practical sense prevented them from engaging in unproductive theorizations.33 The jurists would sometimes even interpret existing legal rules, or adopt new ones, with express reference to extra-legal evaluations: moral ones (e.g., pietas, humanitas, aequitas, affectio, and verecundia) or more practical ones (e.g., utilitas).[48] [49] [50] [51] [52] The Roman jurists were in continuous contact with financial and commercial practice. One of the core tasks of the Roman jurists was cavere, which included advising parties on drafting contracts, conveyances, and other transactions/5 Also in their legal opinions we find many references to commercial and financial transactions, which they often treat with profound ‘economic’ insights/6 The achievement of the late republican jurists was to create ‘a law of markedly liberal temper, freed from archaism and oriented to the needs of commerce/7 In an important contribution on the autonomy of Roman law Pugliese prefers not to speak about the ‘isolation’ of Roman law/8 It is true that the Roman jurists deliberately separated law from religion, ethics, and custom. At the same time, Pugliese observes, it is plausible (or we can assume by way of conjecture) that many institutions of the ius gentium, ius honorarium, and even ius civile have originated for socioeconomic reasons. Without the economic activities taking place in the Roman world during the many centuries of its history these institutions would not have come into existence, or would have had a profoundly different structure.[53] Operative closure must, therefore, ‘not be misunderstood as isolation’.[54] [55] [56] [57] [58] [59] [60] The legal system is not only operatively closed but also cognitively open to the external environment?1 The evolution of Roman law was triggered by ‘irritations’ coming from the other subsystems of Roman society, such as the Roman economy?2 However, the legal system has its own filters which select the elements of the environment that are allowed to resonate within the system.43 The specific legal consequences of these resonations are also determined within the legal system. Structural coupling between law and economy: property and contract Operations of the economic system may be coupled with operations of the legal system and vice versa. For instance, a payment can be both an element of the economic system (exchange of value) and the legal system (discharge of an obligation). Coupling mechanisms are structural couplings ‘if a system presupposes certain features of its environment on an ongoing basis and relies on them structurally?5 An important form of structural coupling in Rome, between the political system and the legal system, was the state office of the praetor.46 Although for Roman private law it is less important (but certainly not irrelevant), of great significance for contemporary societies is the structural coupling of law and politics through legislation.[61] The development of Roman private law into a more complex legal system ‘took place in conjunction with those legal concepts which lend themselves to a structural coupling of the legal system and the economic system, namely property and contract’?[62] Property rights play a crucial role in economies, ancient and modern?[63] As it is the legal system which determines who has property rights and the economic value of property rights depends on the legal remedies protecting them, there is a structural coupling here.50 In economies where the exchange value of property is predominant, contract is the second principal form of structural coupling between legal and economic systems. Most operations of the economic system take the form of contracts: exchanges (e.g., contracts of sale), services (e.g., contracts of employment), and credit operations (loans). One of the interesting features of the Roman law of real security is that it combines both structural couplings between law and economy. Mechanisms of structural coupling operate slowly and carefully: they do not lead to instantaneous ‘one-to-one’ responses of the legal system to communications from the economic system. This means that the legal system can seriously lag behind economic developments. Luhmann observes that structural coupling between the economic and the legal systems proceeds ‘at an extremely cautious pace, which does not immediately give in to pressure from problems, but first gains experience and tries minute variations in its own system’?1 A good example of this in the Roman law of real security is the multiple pledge, which—via a transitional stage—was only recognized in the second half of the second century ad? Systems, individuals, and culture The use of the concept of ‘social (sub)systems’ is often rejected because it ‘rests on a highly reified notion of societies’.[64] According to US legal historian Robert Gordon the legal system is not a ‘secondary specialized subsystem of society, being worked on by social change and working back on it’.[65] [66] [67] [68] [69] [70] [71] [72] But even some of Luhmann’s sternest critics admit that regarding law as an autopoietic subsystem of society provides a useful model or metaphor?'5 In the scientific reconstruction of reality the concepts of systems and subsystems can be usefully employed as ‘cross-cutting slices’ which are made on the basis of theories, models and metaphors and which allow us to examine causal relationships?6 The focus in this book on the evolution of legal institutions means ‘abstracting away a great many social ties, and retaining only the links that make up long transmission chains?7 In this sense, legal institutions are also deliberately reified in this book. However, even in institutional legal history, we cannot neglect how individuals can be responsible for the consequences of legal systems?8 The thinking and actions of transacting parties, individual jurists, praetors, and emperors may be conditioned by their religious beliefs, position in society, economic rationality, and other non-legal factors?9 Even when the conditions included in a conditional programme (e.g., a Roman formula) are framed in purely legal terms (as they usually are), this does not exclude that in deciding whether or not a given fact pattern could be subsumed under these conditions non-legal values endorsed by individual jurists, praetors, judges or emperors played a role. For its effectiveness the legal system is dependent on the culture of the society to which it applies?0 Without using cultural accomplishments the law cannot effectively co-ordinate the actions of individuals and bring order to society. In many respects cultural factors have an impact on the functioning and evolution of legal rules and institutions?1 Although the embeddedness of law in culture and society is not at all incompatible with a systems-theoretical analysis, there is a risk that when one focuses on the subsystem of law one loses sight of the interplay of legal rules with religious, economic, and sociocultural norms and behaviour.[73] [74] [75] [76] [77] One example of how the ‘formal rules' on secured credit were supplemented by ‘informal constraints' is the deterrent effect of social norms and religious concepts (oaths) for pledging someone else's property or not disclosing earlier charges/3 Also, the evolution of Roman law was influenced by cultural factors. With the Romans, ‘the belief system underlying the institutional matrix [deterring] radical change' was particularly strong.64 This belief system had a significant impact on the evolution of Roman law. The Romans were extremely reluctant to discard existing institutions, religious, political, legal, or otherwise. Thus, the introduction of new forms of personal security like the fideiussio was—in classical law—not accompanied by discarding the more ancient forms (sponsio and fidepromissio), which were left to wither away gradually/5 When it became possible to charge res mancipi by way of pignus or hypotheca, fiducia cum creditore continued to exist and was only gradually ousted by its more efficient competitors/6 We should, however, be careful with equating the traditionalist mindset of Romans generally with a lack of innovative spirit with the Roman jurists/7 They did introduce many legal innovations but would usually try to do so by modifying existing legal institutions (e.g., mancipatio) rather than creating entirely new ones/8 When this was not possible, existing institutional elements were used to build a new institution. This recombination of existing institutional elements can be observed in the Roman practice of the pledge and lease back (section 6.7), in the extension of the ius offerendi et succedendi to novation (section 7.4), and in the adapted action granted to a creditor to whom a claim had been pledged (section 8.3) or an independent right of antichresis had been granted (section 8.4). 1.3
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