The Collected Papers of Peter Birks

Before we introduce these lectures it is appropriate to mention the wider context of their publication. Some years after Peter Birks' sudden death, which took him away at the height of his academic career in 2004, a project was initiated among Oxford University Press (Alex Flach), Professor Birks' widow Jackie, and the present editor (who had been one of Peter's doctoral students) to make the entirety of his scholarly writings available to the legal community.

This project will materialize over a number of years, one volume at a time. The present Roman Law of Obligations is the first in the series. Although there is no particular reason why it should come first, it is in fact an excellent illustration of what is hoped will be achieved through this project. Though these lectures were offered to undergraduates in a jurisdiction whose private law is still directly rooted, at least in part, in the Roman law library, one cannot help but bemoan, going through the pages, the waste it was to restrict the audience to them. They are a scholarly opus in their own right and should be of interest to all private lawyers, even non-Romanists.

Indeed, that the significance of the Roman law of obligations goes much beyond the Roman law of obligations is a theme that permeates the pages that follow. Birks passionately believed, like many of his pupils, in the continued relevance of Roman law for twentieth and then twenty-first-century students of the law. Not only did it supply, in the institutional stream which introductory Roman law invariably follows, a �map' of the law—something common lawyers, in particular, desperately needed—it also provided a form of universal grammar of the law which could be used to expound, understand, and evaluate the modern law. This introductory function of Roman law was not, to his mind, limited to Romanist jurisdictions; if anything, it might be more relevant to English lawyers and students of the common law. Whether to highlight features that are common to two systems—English and Roman—which cannot be understood apart from their actional dimension, or to understand better the workings of the common law by contradistinguishing it from the matrix of the civilian tradition, the importance for common lawyers to study Roman law is a theme— Birksian par excellence—which these lectures return to throughout.

Crucial to this ambition are an emphasis on the centrality of tax­onomy and a fascination for the less well-mapped areas of the law of obligations, those lying beyond contracts and delicts (torts). This is particularly titillating if one remembers that these lectures were written at the same time as the book which would define its author for the next twenty years in the English-speaking world, the Introduction to the Law of Restitution, was being shaped. Now, that Birks was also a Roman lawyer is something that naturally everyone knows; but quite the extent to which he was primarily—the term can be used both in a chronological and in an analytical sense—a scholar (and a lover) of Roman law is not necessarily appreciated by all those who came to know him and his works through the English law of unjust enrich­ment. There is no line to be drawn, not even a dotted one, between the Romanist of the i96os-early 1980s and the restitution enthusiast who mostly took over afterwards. Though of course an ellipsis, it would hardly be an exaggeration to say that the twenty years he spent consumed by the desire to mould a law of unjust enrichment in its mos anglicanus were a long meditation on paragraph 3.91 of Gaius's Institutes.¹