THE PRESENT-DAY STUDY OF ROMAN LAW

Some teachers of the Roman law have undertaken to offset the lessening of interest in its study because of its necessary emphasis on the historical approach at the present time by urging the utility of the medieval and early modern development of the Roman law for an understanding of the rules and concepts of the present legal systems. Jolowicz has sought to balance utility and ‘elegance’, by which is meant that legal study which ‘rises above the immediate necessities of practice,...

In somewhat similar fashion, in his inaugural address at the University of Leiden, Feenstra deplored the excessive interest in early Roman legal history and its present scholarly efforts: the search for interpolations and the desire to reconstruct the legal institutions of the classical period of Roman law, the time of the late Republic and early Empire.^iJ He would urge that the attention of the Romanist, and the student, be devoted to what he termed interpretatio multiplex, the search for the meaning of a legal text not only in the sense it had in the classical period as well as in the postclassical and Justinian epochs - the definition of these, infra-but also to discover its significance in the period after Justinian, particularly subsequent to the revival of the study of Roman law in 12th-century Europe.

2. The Value of the Study of Roman Law Comparatively

§6 To a degree the study of Roman law for the purpose of elucidating the rules and principles, as well as the general concepts of the ancient legal

21. Op. at., 336.

22. Raman Foundations of Modem Law (Oxford 1957).

23. Interpretatio multiplex. Een beschouwing over de zgn. Crisis wuthei Romeinse redu (Zwolle 1953).

24. A recent inquiry in Labeo 17(1971)269 f, has brought a wealth of replies, almost entirely affirmative, to the question whether collaboration with scholars in other fields is pertinent to the study of Roman law, Labeo 19 (1973) 42-85, 185-95, summarized by Guarino, 339-52. system - the so-called dogmatic purpose - may be seen as a comparative value of Roman law study. More particularly, however, many scholars - and particularly among the Anglo-American - have spoken of Roman law study in connection with the comparison of modem legal systems. The renowned Romanist who later turned his attention to comparative law, Rabel, suggested that there was no better approach to comparative law for American students than the data furnished by the evolution of the Roman law in medieval and early modem times.¹ The intensive develop­ment of categories among the Romans, Franklin maintained, afforded a needed contrast to the American emphasis on cases and the case-method in our law schools.^{[22] [23] [24]} Stone carried on this idea, pointing out that the case­law system produces able technicians, but not jurists; that the introduc­tion of the tools of other disciplines, and the tools of other legal systems, in particular those of the Roman law, would broaden legal education?

There are some teachers of comparative law - in the comparison of present-day civil law systems with the Anglo-American law - who devote introductory lectures to the Roman law. Pringsheim, in his characterization of one of the great Romanists at the turn of the century, Otto Lend, declares, 'The idea that one could work in comparative law without legal history, as is nowadays sometimes done, would be considered absurd by him.'^{[25] [26] [27] Lawson's lectures at Michigan also laid considerable emphasis on the value of Roman law for the study of the modern civil law by the Anglo-American jurist? Indeed, in another paper, Lawson even suggests that the Roman law may be preferable to a modern civil law system for comparative law purposes? The limited amount of source material available in the Roman law, he states, keeps the comparative study within bounds; furthermore, Roman law is the most purely legal law we have, for it is entirely apolitical and tied to no particular-philosophical system in that portion which is pertinent to comparative law purposes. The role of Roman law in comparative law studies has been too firmly established to be en­tircly swept away in the future; it appears to be in temporary eclipse, however, and I will not attempt to justify its study on that ground.’}

A new value for Roman law, comparative in nature, has recently been put forth. Roman law is accorded a position of prominence by the Marx­ists as the antithesis to the legal structure of communist society. To Bar- tosek the Roman law was the legal order of slavery, a step forward with respect to the legal order of primitive society caused by a rather high level of productive forces.* The tie of the slave-system law of the Romans with capitalism is exploited by Reggi, and the way in which Marxist historio­graphy can overcome the ‘crisis’ of the Roman law is explained.’ Reggi’s point of view was not convincing to either Biondi'“ orTarello," nor would it seem to be of value to the beginning student, because of its superficial treatment of the guiding principles of the law and its facile view of Roman legal history as a perpetual struggle between the classes. On the other hand, the assertion has been made that socialistic study of the Roman law does not overvalue the need of research into the sources nor attribute false con­cepts to the Romans, as the Pandectists did; it is in a better position to comprehend the economic role of law and of legal institutions, and to give meaning to the rich material on the basis of Marxist doctrine, thus to discover the true nature of the Roman state and the moving forces of i ts jurid ical evol u tion.'ⁱ

3. Ancient Legal History

§ 7 There is another approach to Roman law that merits consideration. In his inaugural lecture at the University of Vienna, in 1904, Wenger proposed that Roman law serve as the basis for the study of ‘antike Rcchtsgeschichte*, which may be literally translated ‘ancient legal history’.¹ In the years follow-

7. The leading studies on Roman and comparative Law are noted by Wenger, Quellen 10 n. 20.

8. ‘Come si dovrebbe sludiare attualmcntc il diritto romano’, Studi Arangto-Ruiz I (1953) 317—38; the reply of Biondi, ‘Diritto romano e marxismo', Jus 4 (1953) [ =Scritti 1497-515], is devastating

9. ‘Materialismo storico e studio del diritto romano'. RISG 8 (1955/56) 557-603.

10. ’Crisi del diritto romano e marxismo’. Jus 8 (1957) 477-95 [ =Serini I 517-39].

11. ‘Storiagrafia marxista, studi romanistici c crisi del diritto romano in una rcccnte inda­gine’, Riv Intern, di Files d. Dir. 35 (1958) 457-67.

12. Vilaghy, 'Geza Marion: Lehrbuch der rbmischcn Privatrechts. Institutionen (Bemer­kungen zu einigen prinzipiellen Fragen der Romanistik)’, Ada Jurid. Acad. Hangar. 2(1960) 169-83.

1. RAmisdte undantike Reditsgesdiidile,, Wiener Antritisvoriesung (Wien 1905).

§7 ing he reiterated, defended and expanded his idea, culminating in the treatment accorded the topic in his magnum opus? Briefly, Wenger’s posi­tion was that Roman law might well be termed the ‘melting-pot’ of the legal systems of antiquity, to use the phrase I once employed? The law of the Roman world-state (Imperium Romanum) encompassed within its bounds the ultimate expression of all the legal systems of the ancient Mediterranean and Near Eastern peoples. Roman law thus came into con­tact with all other known laws of ancient times. Law in the Roman state is thus the terminal phase of a legal development stretching back through the millennia to the very beginnings of Indo-European, Mesopotamian and Egyptian societies. Consequently Roman law may serve as a common ground for the study of ancient legal systems, as the most extensive and the best- known in this category. Although it would be erroneous to attempt to re­construct an ancient law as it would be to posit an ancient language - the ever-increasing researches into the many other legal systems of antiquity may find their focal point in the Roman law. To determine the extent to which the legal systems of the subject peoples influenced the Roman law, or in turn gave way in the face of Roman law, we must thoroughly under­stand the foreign legal systems. And we can do this through the tool of the Roman law. Ancient legal history is to be recognized as a sector of universal legal history.

It was in great part due to Mitteis’ epoch-making study on empire law and local law* - a topic to which we will return - that Wenger came to advocate the idea of ancient legal history. Yet, some years later, Mitteis expressed doubt as to the value of Wenger’s proposal? The extant sources of the other legal systems of antiquity, he declared, were too sparse to utilize for scientific study. Furthermore, ancient legal history could never be more than a part of comparative jurisprudence; thus, Roman law was not the basis for study of ancient legal history, but merely one complex to be compared with one or another legal system, ancient or modern. Another

2. Quellen $ 12, pp. 27-33. The earlier studies, and comments thereon by others, to 1947, in note 1, p. 27. Wenger’s position with respect to the writings of others in the area of ancient legal history was set forth in successive numbers of his Juristische Literaturiibersicht, in Arch. Pop. 9(1930) 107-18, 258-98, 10(1932) 102 41. 281-90; 12(1937) 139 58,248 90, 13(1939) 169-76, 279-82; 14 (1941) 237-38; 15 (1953) 195-222. An English version of his views, ‘Ancient Legal History’, Harvard Tercentenary Publications: Independence. Convergence and Borrowing in Institutions, Thought and Art (Cambridge 1937) 62-79.

3. Schiller, Georgetown L. J. 21 (1933) 147, 151 f. [ -American Experience 10, 14f.].

4. ÄeicArrwÄr und Volksrecht in den ostlichen Provinzen des romischen Kaiserreichs (Leipzig 1891; repr. with preface by Wenger, Leipzig 1935).

5. ‘Antike Rechtsgeschichte und romanisüsches Rechtsstudium’, reprinted from Mitteil. Vereins, d. Freunde d. Humanist. Gymnasiums Wien 18 (1918).

noted Romanist, Kübler, pointed out that it was difficult enough to justify the inclusion of Roman law in the curriculum of a (German) university, without the added burden of ancient legal history.* Koschakcr, at first,^{[28] [29] [30] [31]} was of the opinion that universal legal history, of which ancient legal his­tory was a part, was not an acceptable field of research, and that com­parative law studies were alone satisfactory; in a later commemorative study to Wenger, he admitted the value of such study? An excellent sum­mary of the pros and cons was made by De Zulueta,’ in which he raised the question whether a consideration of Roman law in its relation to medieval legal history would not be of more value to the student than the ancient legal history which Wenger had advanced.

On the other hand, a favorable reception to ancient legal history was accorded by a number of scholars from the very start.^{[32] [33] In the course of time it became a regular unit in the course of legal study in Germany. It may have had some influence in the framing of the first-year course in the French universities - history of institutions and social events from the earliest beginnings to the Carolingian epoch - which recently was part of the required study. Two extensive studies attempted to extend the ambit of ancient legal history, giving greater prominence to the methodology to be employed in the study of the non-Roman legal systems of antiquity.“ Although interest in the subject may appear to have waned in recent years,[34] [35] the idea of drawing together the results of research in the various legal systems of ancient times into one easily accessible survey has been brilliantly accomplished, in ever-expanding fashion, in the reports periodi­cally assembled by Seidl, one of Wenger's leading students.“}

Inasmuch as there will not be an opportunity to enter to any great extent into the field of ancient legal history or of ancient non-Roman legal sys­tems in this work, the attention of the student is called to some of the most significant works in these areas. Although now somewhat out of date, the surveys in English in the group of articles under the heading ‘Law’ in the Encyclopedia of Social Sciences should be noted.¹⁴ Seidl’s text-books on Roman law and legal history are, in fact, treatises on ancient legal history?⁵ He is also responsible for the works which portray Egyptian legal history from the earliest times to the close of the Roman epoch.¹⁴ Among the works concerned with the earliest legal systems of the Near East are collec­tions of Babylonian and Assyrian laws, and Hittite laws with English trans­lations and commentary.” There arc also extended studies on these early legal systems by San Nicolo and Volterra. ” For the Jewish law there is Rabi­nowitz” and Powis Smith²⁰ and, specifically, the legal institutions preserved in the documents of the Jewish colony in Elephantine, Egypt, of the 6th century B.C.²¹ There exist a number of works on Greek law in English, by Vinogradoff, Calhoun, Bonner and Smith,” with a score of other mono­graphs cited by Wenger.¹⁵ Recently there is the extensive work by Prings- heim devoted to the Greek and Hellenistic law of sale,¹⁴ and more general treatments of Greek law by Jones and Biscardi.“ For the legal systems

14. 9 (1933) 202, 206-35, 263-65, incorporating: ‘Ancient Legal History’, by Wenger; ‘Egyp­tian’, by Seidl; ‘Cuneiform’, by Koschaker; ‘Jewish', by Gulak; ‘Greek’, by Weiss; and Hel­lenistic and Greco-Egyptian’, by Schiller.

15. Romisches Privatrecht (2nd ed., Koln 1963), and Romisches Rechtsgeschichte und Romisches Zivilprozessrecht (3rd ed., Koln 1971).

16. Einführung in die Ägyptische Rechtsgeschichte bis zum Ende des Neuen Reiches (2nd ed., Glückstadt 1951); Ägytische Rechtsgeschichte der Sailen- und Perserzeit (Glückstadt 1956); Ptolem&ische Rechtsgeschichte (2nd ed., Glückstadt 1968); Rechtsgeschichte Ägyptens als romische Provinz (1973).

17. Driver and Miles, The Assyrian Laws (Oxford 1935); Driver and Mites, The Babylonian Laws, 2 vols. (Oxford 1955); Neufeld, The Hittite Laws (London 1951). For the latter see also Friedrich, Die hethitischen Gesetze (Leiden 1959),

18. San Nicolo, Beiträge zur Rechtsgeschichte im Bereiche der keibriiriftlichenRechtsguellen (Oslo 1931); Volterra, Diritto romano e diritti oriental! (Bologna 1937), and Les rapports entre le droit remain ei les droits de à Orient (Bruxelles 1955).

19. Jewish Law; its Influence in the Development of Legal Institutions (New York 1956), to be used with caution since it is excessively partial.

20. The Origin and' History of Jewish Law (Chicago I960).

21. See Yaron, Introrfaction to the Law ofAramaic Papyri (Oxford 1961); Porten, Archivesfrom Elephantine (1968).

22- Vinogradoff, Outlines of Historical Jurisprudence, II: The Jurisprudence of the Greek Gly (Oxford 1922); Calhoun. Introduction to Greek LegalScience(Oxford 1944); Bonner and Smith, The Administration of Justice from Homer to Aristotle, 2 vols. (Chicago 1930, 1938).

23. Quellen 31 n. 27.

24. The Greek Law of Side (Weimar 1950).

25. J. W. Jones, The Law and Legal Theory of the Greeks (London 1956); Biscardi, Profile storico di diritto greco (Siena 1961); Harrison, The Law of Athens, I: The Family and Property, and II: Procedure (1968-71).

with which Rome actually came into contact, the most extensive knowledge is to be obtained from the papyri of Greco-Roman Egypt, on which the standard treatise is that of Taubenschlag.“ The Coptic documents, from the very end of Roman rule in Egypt, afford a curious mixture of Greco- Roman and Egyptian (enchoric) practice.¹’ Finally, the recent discovery of documents in the Judean desert from the time of Roman sovereignty²¹ have provided insight into the legal practices of another Roman province, already affording opportunity for comment by experts in the Roman- Jewish law.”

4. Courses, Materials and Methods

§ 8 Some ten years ago the editors of Labeo sent a questionnaire to some 300 possible teachers of Roman law, seeking an answer to six questions, framed somewhat as follows: (1) Is preliminary modern conceptual training a prerequisite for the study of ancient Roman law? (2) Is contemporary conceptual understanding sufficient for the reconstruction of the Roman law, or are the concepts only to be framed from results reached?(3) Is Roman law to be studied alone, or in the framework of ancient legal history? (4) To what extent is Roman public and private law useful for the preparation of the modem lawyer? (5) Is study of legal institutions sufficient, or is exegesis of the texts also recommended? (6) In the course on legal institu­tions, is it necessary to limit this to the historical development of institu­tions, or is it preferable to frame the course in the light of current law, particularly stressing Roman legal institutions for which there exist corres­ponding modern institutions? Forty-nine replies were received and pub­lished,¹ including seventeen Italian professors, seven German, four Austrian, three British and three Spanish, and one or two French, Belgian, Dutch,

26. The Law of Greco-Roman Egypt in the Light of the Papyri (322 B.C. - 640 AD.) [2d cd, Warsaw 1955]. Cf. also his 'Introduction to the Law of the Papyri', 4ZRZD4 1 (1952) 279-326.

27. Steinwenter, Das Recht des koptischen Urkunden (Handbuch der Altertumswissenschaft, X Abt., 4 Teil, Bd. 2) (München 1955); on the work, see Schiller, 'A Monograph on the Law of Coptic Documents and Survey of Coptic Legal Studies, 1938-1956*, Z. vergl. RW 60(1957) 190-221.

28. Benoit, Milik and De Vzu*. Discoveries in the Judean Desert, II: Lesgrottesde Murabba'at, 2 vols. (Oxford 1961).

29. Yaroo, ‘The Murabba’at Documents', J. Jew. Stud. 11 (1960) 157-71; Voitcrra, 'Nuovi documenti per la conosccnza del dintto vigente nolle provincie romane', Jura 14(1963) 29-70.

I. ‘Studio e insegnamento del dirilto romano. Inchicsta’, Labeo 2 (1956) 48-84,187-218, 327-51, 453-54.

Swiss, Greek, Jugoslav, Polish, Hungarian, South African, and one Ameri­can.^{[36] [37] [38] [39] Most professors followed pretty much the leads indicated, and the diversity of opinion accorded with the divergence of views which have been outlined in the two previous sections. It would serve no purpose to attempt to generalize from the results. As one commentator on the inquiry implies, the value of teaching Roman law seemed to be clearly connected with in­struction in modern law; to his mind the historical study of law is quite distinct from any practical utility?}

What is quite clear from the results of the questionnaire is that the teachers of Roman law are largely individualists, seeking their own stated aims in the courses they profess, and organizing their lectures or collecting their materials to accomplish these ends. Though the general content of the courses is more or less fixed among the universities on the continent, this does not prevent divergence. In Italian universities the basic courses were three in number:* (1) History of Roman law, to present and critically evaluate, in the frame of the history of the Roman state, those aspects of the legal order, public and private, which will prepare for subsequent syste­matic study of the Roman law; (2) Institutions of (private) Roman law, an elementary systematic-historical treatment of the private law for begin­ners in law study, following the sequence of the subject matter of modern law as far as possible; (3) Roman (private) law, deeper study of single parts of the vast material of the Roman private law, to afford immediate contact with the sources, primarily the Digest of Justinian. Supplementary instruction exists in (4) Roman public law, again systematic-historical treat­ment, but with no close connection to institutions of modem public law; (5) Exegesis of the sources of Roman law, the historical-critical interpre­tation of the sources, with emphasis on the criteria of interpolation? culmi­nating in a practice critical edition of a text. Courses related to the study of Roman law, generally in the Faculty of Letters, may include Epigraphy and juridical papyrology, History of ancient legal systems, Latin and Greek language and literature, and Ancient History.

In the French universities during the last half of the 19th and the first half of the 20th centuries, two years of instruction in Roman law were required, a first year on legal institutions, and a second year devoted to the subject of obligations in its relation to the French law. Then, in 1954, a year course in the history of institutions and social events from the earliest ages of civilized man through the Carolingian epoch, and three single-semester courses in the second, third and fourth year on the Roman and ancient French law of property, obligations and matrimonial regime, donations, and succession, were substituted/ As a result, Roman law accounted for but a small part of the historical study in legal education in France. A desire to introduce a new 'licence' (degree) led to a further series of changes in 1960-62/ Roman law accounts for only one of the five semester courses of historical study which are required. The fate of Roman law at the French universities cannot be predicted at this time.

Since the war the amount of time devoted to Roman law at German universities has substantially decreased. Pringsheim reported on its status at some sixteen of the universities in 1955.* A three-hour course in Roman legal history was given at nine of the institutions, at the remainder one hour more or less per week. In half the universities this was a first-semester course. In addition, Roman private law (Institutions) was a required course of six hours at one university, five hours at six others, four hours at seven, and three hours at four. Exegesis in the Digest was a popular course at eleven universities, white seminars in various subjects were offered at eight institutions. From this it can be seen that inroads have been made by other subjects, yet Roman law - legal history and institutions, with some attention paid to textual criticism and particular interests - is still a part of German legal education

There is a long tradition of Roman law teaching at Oxford and Cam­bridge, of more recent date in the other universities of England. The Insti­tutes of Gaius and Justinian - see the next chapter - usually provide the subject matter for the introductory course, and one or more substantive law topics - sales is a favorite - the basis for intensive study, frequently from a comparative point of view. However, the content and the method depend to a large extent on the individual professor, readers and lecturers. There has been constant attack upon the prominence given to the study of Roman law in university legal training,’ but it remains a significant part of the B.C.L. degree. Recently, Thomas has suggested a new type of course, a one year course to give ‘an essentially factual exposition of the general structure of Roman law, followed by a study in some detail of a

6. Cardasda, lura 7 (19%) 643-44; Gaudemet, Labeo 2 (1956) 126-27.

7. Cardasda, Zura 14(1963)216-18.

8. SZ 72 (1955) 526-28.

9. See, e.g., Hanbury, 'The Place of Roman Law in the Teaching of Law Today’, JSPTL 1931, 14-25.

§8 particular topic on a comparative basis with a similar branch of English law’.¹⁰

In the United States Roman law has frequently been included, and quite successfully, in the curriculum of the undergraduate college. Professor Morey, whose remarks were cited in § 5, was speaking of such a course. Hadley, at Yale, was well known for his course in Roman law," and equally popular was Coleman-Norton at Princeton" and Berger at the College of the City of New York.¹³ But Roman law in the Classics or History De­partments as an undergraduate course serves purposes quite distinct from a course in a law school. There has been no lack of effort to introduce Roman law into the law school curriculum and no dearth of articles seek­ing to justify its inclusion, for all the reasons which have been indicated earlier, and others in addition.'* This effort extends in time from the era when the attorney taught his clerk right up to the present.¹⁵ To a great degree the value of Roman law in comparative law study has been primarily stressed in recent years,’* replacing the so-called 'practical' value of the contribution of Roman law to the American law.” There arc those, also, who point to the conceptual nature of Roman law as a foil to Anglo- American case-law. As an instance of this, reference may be made to Ehrenzweig’s proposed lectures on Roman law as the introduction to the conceptual ideas of world jurisprudence,¹¹ First, a few hours devoted to the history, the elementary concepts and the system of the Roman law, then fourteen of the twenty lectures to be devoted to a presentation of the Roman law of obligations. Ehrenzweig believes that, in this fashion, a sys-

10. Address at the 1’ Inter-American Cong, of Roman law, Ranatdtas 9 (1971) 377, 389­90.

11. Hadley, Introduction to Roman Law (1873, repr. 1931), reproduces his course of lectures.

12. Cf. his remarks, ‘Why study Roman Law?’, J. Leg. Educ. 2 (1949/50) 473-77.

13. He used his Encyclopedic Dictionary as the basis of his lectures.

14. Most of the references are to be found in Cacs, Colleaio 13/14(1964)616, r.v. ius Roma­num - methodus.

15. Among a score or more articles, attention may be called to two anonymous notices, Al­bany L. J. 3 (1871) 297-99 and 6 (1872) 245-46; and to articles by Pincoffs, ‘The Object and Value of the Study of Roman Law*, Amer. L. Rev. 15 (1881) 555-72; Lobingier, ‘The Value and Place of Roman Law in the Technical Curriculum’, Amer. L. Rev. 49 (1915) 349-73; Cas­sidy, ‘The Teaching and Study of Roman Law in the United States’, Georgetown L. J. 19(1930/ 31) 297-305; Franklin, "On the Problem of Teaching Roman Law’, J. Leg. Educ. 5 (1952/53) 508-13; Stone, ‘The Role of Roman Law in Teaching Law Comparatively’, Butterworths S A L. Rev. 1956, 119-26; Kessler, ’On the Value of Roman Law for Twentieth-Century American Law Students’, J Leg. Educ. 12 (1959/60) 377-95.

16. E.g., Cassidy, Franklin, Stone, note supra.

17. E. g., Pincoffs, Lobingier, n. 15 supra; sec also Sherman, Roman Law 11 ff.

18. ‘A Common Language of World Jurisprudence*, U. Chicago L. Rev. 12 (1945) 285-94; the idea is renewed in his contribution to Labeo 2 (1956) 65-66.

ternarie comprehension of our own law may be furthered, Roman legal terminology may be useful, and ‘a conceptual system of unique methodo­logical value would be afforded’. Some such scheme may now be used in several of the introductory courses in comparative law or legal history in this country. But this subject matter is actually a melange of Justinian, medieval, early modem natural law, and Pandect law development rather than Roman law, in the strict sense of the term. Indeed, there are only two or three courses devoted wholly to Roman law in American law schools, and to the best of my knowledge, all except the course at Columbia exphasize the comparative aspect of the conceptual elements of Roman legal institutions.'*

5. Roman Law at Columbia University School of Law

$ 9 The course in Roman law at Columbia has evolved over the past forty-three years, but from the very start it has directed its emphasis to what has been denominated 'mechanisms of development', that is, those factors and those forces which made of Roman law a highly refined technical system capable of meeting the requirements of the Roman⁴ world’ society at the height of its power and prominence, i.e., during the time of the late republic and early empire. For it was during this period, and this period alone, that Roman law reached the pre-eminence which has led it, along with Anglo-American law, to be reckoned as the world’s most highly esteemed legal system.

This value of Roman law is already reflected in the words of Monroe Smith, my predecessor at Columbia, uttered in an address more than seventy years ago:

I trust, in closing, that I may be permitted to take a further liberty with my theme, and to indicate that a careful study of Roman legal history will be of great service to the Englishman or American who desires to compre­hend his own legal history. I lay little stress on the point that we may thus recognize what has been borrowed; I desire chiefly to insist upon the point that we may thus better appreciate the true character of English legal his­tory as an independent development. Furnished with a knowledge of the Roman law and of its development, the English investigator will more

19. The survey by Edwards, International Legal Studies: A Survey of Teaching in American La w Schools, 1963-1964 (1965), Appendix A, lists Roman Law or Roman and Comparative Law at seven Law schools in the United States. The most recent list of schools offering Roman law is contained in the Report of the Teaching ofLegal History in American Law Schools, by J. H. Smith, chairman, Legal History Section, Association of American Law Schools, dated Nov. 20,1973.

§9 accurately gauge by comparison the excellencies and the defects of the English law. He may not find, as is commonly claimed, that the Roman law is more scientific, - a claim which I take to mean that its broader general­izations are more correct, -but he will certainly find that the Roman law is more artistic. The sense of relation, of proportion, of harmony, which the Greeks possessed and which they utilized in shaping matter into forms of beauty, the Romans possessed also, but the material in which they wrought was the whole social life of man. There was profound truth in the saying of the Roman jurist that law was the ‘ars boni et aequi’.

The comparative student will find also that while the English law has developed in certain directions further than the Roman, the Roman law in certain other respects had attained, at the close of the republican period, a developmen t which seems to go beyond ours. This is true, for instance, in the whole field of commercial dealings. The great regard paid in all com­mercial transactions to good faith and the instincts of an honest trades­man, and in particular the abandonment by the Romans, two thousand years ago, of the primitive and dishonest doctrine of caveat emptor, - a doctrine which the English law still unaccountably retains, - point out lines along which, I believe, our own law is bound to develop.

Best of all, the comparative student will learn to distinguish between that which is peculiar and therefore accidental in both systems and that which is common to both and therefore presumably universal. It has long been the hope of some of the greatest modern jurists, both in English­speaking countries and in Europe, that by strictly inductive study it may be possible to discover a real instead of an imaginary natural law. The corres­ponding hope of the legal historian, that it will in time be possible to formulate the great laws that govern legal development, is not, I believe, an idle dream; and 1 am sure that the minute comparative study of Roman and Anglo-American legal developments will carry us further toward such a goal than any other possible comparison.¹

The same value was expressed by the leading English Romanist in the early years of this century. Buckland pointed out the similarity between the Roman law and the Anglo-American in establishing legal doctrines without legislation and within the framework that already existed; as a result, the ways of legal thinking of the groups responsible for the development of law are very much the same.¹ There was never, he says, any ‘logical’ classical law, ^{[40] [41]}

for it was too much an age of rapid development. No other legal system gives us as good a picture of lawyers operating within a given set of rules to make law satisfy the needs of an advancing civilization. Like the Anglo-Saxons, the Romans had the gift of administration and of being administered. The pax Romana made the law; with the end of pax came the end of the law? Four decades ago, Pringsheim emphasized the relation between the Roman law of the classical period and the English law? It is a natural relationship stemming from similarity of national characteristics; the national attributes which enabled the English and the Romans to govern the world are the same as those which formed their law. Lord Bryce, Pringsheim notes, also wrote of the methods of law-making in Rome and in England, but our ideas of the nature of the classical law have been drastically altered in the decades since Bryce’s essays appeared? When Roman law and English law were compared in the past, the former was the law as expressed in Justinian’s codification; the comparison was necessarily inaccurate. The spirit of the Roman law in the classical epoch is related to the spirit of the English law; that of the Justinianian era is almost in opposition to the English spirit.

Some Romanists on the continent have also recognized the peculiar char­acteristics of the Roman law of the classical period and its pertinence to the law of today. Biondi abjures Pandect study or a modem conceptual ap- roach^{[42] [43] [44] [45] [46] [47] [48] for the knowledge of Roman law calls for a division into its various epochs as well as into its various juridical complexes? Ehrlich had recog­nized the feeling for realism as the salient characteristic of Roman jurispru­dence, behind the creative force of legal norms and principles in classical times? De Francisci, in the introduction to his history? spoke of the Roman jurists of the classical period as masters with little love for general theories but possessing an acute sense of reality, of the structure and the practical scope of every institution, who could direct the development thereof without altering the organic or original nature of the concept; prompt to abandon it, if it could not be bent to accommodate new purposes, in order to create new methods responsive to different situations, to altered interests, to the}

0 urgency of new needs. He follows this up with an extended discussion of the similar ‘mechanisms of development’ in the English law. Siber states¹⁰ that the focus of Roman law study today must be the classical law, which Schulz chooses to portray¹¹ because it is the center of any science of Roman law, from which all inquiries must start, a homogeneous, original and even unique system of law.¹²

The focus of a course which seeks to portray the forces which fashioned the universally renowned Roman law, which bears the closest resemblance to the judge-made and lawyer-developed Anglo-American law, is thus cen­tered upon the era known as the period of the classical Roman law, roughly the epoch between 150B.C. and 250 A.D.¹’Elements important in the devel­opment of this law during the preceding centuries must necessarily betaken into account, but the course of legal development in later ages, the so-called post-classical and Justinianian periods, is not included herein, because in the view of the author it is not a legal system which merits the attention of the Anglo-American lawyer. There are those who will say that this is a truncated version of Roman law;thatit is inadequate because: (l)it fails to draw atten­tion to the almost total bureaucratization of the law that occurred in the later times; (2) it omits all consideration of that newly discovered field of endeavor, vulgar law; (3) it passes by that crucial event, the codification of the Roman law under Justinian, which gave the impulse to the development of modern civil law and, at the same time, preserved for us the materials which made up the classical law. In answer thereto it can be said: (I) a bureaucratized legal system, a Byzantine Roman law, is not a legal system which has any appeal for the American way of life; (2) vulgar law, that is, the legal rules reduced to non-professional simplicity to accord with popular practice,'⁴ is of no particular interest to the American law student, and there is no more occasion to devote time to Roman vulgar law than to popularized, largely debased, legal principles which may characterize a period of professional debility in any legal system;¹³ (3) the medieval and modern development of Roman law into the civil law systems is a wholly distinct subject, and as to the techniques of codification, interesting as those

10. Redit 2.

11. Classical Law 1 f.

12. Schulz abstains from comparing classical law with the law of other peoples, for the unique character of the Roman law renders such comparison unprofitable and even confusing (page 5). There is no direct comparison in this volume, either.

13. The exact delimitation of the classical period is presented infra, chap. IV, § 44.

14. For a brief statement of Roman vulgar law, sec Levy, Vulgar Law I (195!) 1-17.

15. This point of view has been expressed earlier by the author, in response to a question­naire on the place of vulgar law in Roman law study, Schiller, Labto 6 (i960) 365-67.

of the 6th century may be, they certainly have no pertinence today.^{[49] [50] [51]}

The epoch of the law upon which emphasis is laid having been determined, the materials which will serve the ends desired must be selected. A history of Roman law from the earliest beginnings to the end of the classical epoch would be much too comprehensive for a one-semester course. The origins of Roman legal institutions, the details of the organs and the institutions of public law are outside the interest of the lawyer. Intensive study of a number of legal institutions of the classical law might, indeed, afford insight into those forces and factors of development to reveal the way Roman law was fashioned. The American law student, however, needs an introduction into the subject before being plunged into the complexities. The contents of this volume seek to present that introduction. The first four chapters lay the groundwork for study and research and occupy little time in classroom dis­cussion. Chapters V and VI are devoted to a presentation of the essentials of the archaic and pre-classical law needed for an understanding of the central core of the course. Chapters VI! to XIII comprise somewhat detailed treat­ments of the forces of development and the practical and theoretical aspects which made Roman law a great legal system.

The specific period of interest, the subject matter of the course have been outlined; there remains the method of instruction. The normal course in Roman law, on the continent and in England, consistsofa series of lectures. Supplemental thereto are the smaller sections and seminars devoted to the exegesis of individual texts. Neither of these methods of instruction is satis­factory for American law students. Law professors do not lecture! Law students cannot understand Latin! These are not absolute truths but cer­tainly reflect the generally accepted views. From the very start of this course, therefore, materials were providedthe case-book-now more often, cases and materials - was the model. The materials used were necessarily the first­hand reports, the sources, of the Roman law: the legal texts found in the corpus of Justinian or elsewhere in juristic writings or compilations; then also, legal statements in non-legal writings; public and private documents preserved in inscriptions or on papyri. The originals were primarily in Latin, a few in Greek. But as Lee has pertinently said,¹· many persons have gotten a good deal out of the Bible without knowing Hebrew or Greek. The book. then, is primarily a collection of extracts from the original sources, in trans­lation, to afford classroom discussion. There exist a considerable number of collections of source materials for instructional purposes, in the original languages or in translation-some in English-but as might be expected, each was compiled to meet its compiler's aims. Some are collections of single texts to afford critical introduction to particular segments of the law;” most are attempts to cover the substance of the private law by extracts from the Corpus Iuris?⁰ Needless to say, such collections do not meet the demand here. The selection of materials in this volume has been made to present the most pertinent texts upon the matters destined for discussion ; the author and the title of the work or fragment from which the extract derives is given, in Latin, to afford some acquaintance with the sources. The text itself is liter­ally translated; ambiguities are purposely retained.

The texts form the heart of the materials. But since discussion and exposi­tion of the law by others is based on these very same texts, an attempt has been made to present, in brief form, the views of various scholars as to the meaning and significance of the texts. In many cases the same texts give rise to contradictory views; at times an entirely new theory is advanced, in the face of decades or even a century of communis opinio, accepted opinion. Research and discussion of these very same texts has been going on since the end of the 11th century; reports of secondary discussion are limited to two or three recent comments. A few more references may be indicated in the notes. But the student may be alarmed by what he considers excessive anno­tation, particularly to articles in foreign languages. It should be stressed that the student, in his first course in Roman law, is not expected to do more than carefully study and prepare the materials in this volume, supplemented by the outside reading of the standard text-books and the few articles which have been assigned. This will form the basis for classroom discussion. The volume, however, is intended to serve as a desk book for further research in Roman law. The references not only contain the citation of the book or

19. E.g., Zitdmann, Digestenexegese. Zwanzig Fälle aus dem romischen Recht (Berlin 1925); Schulz, Texte und Übungen im romischen Privatrecht (Bonn 1925); Belli, Esercitazioni romani?* ticke su casi proci id, I: Anormalità dei negozio giuridico (Padua 1930); d’Ors, El esdavo prestado con una flauto (Santiago 1945).

20. Arangio-Ruiz-Guarino, Breviarium iuris RomanUSlh ed., Napoli 1974); Kahler, Lesebuch des romischen Rechts (3d cd., Leipzig 1925); Level-Perrol-Fliniaux, Textes et documents pour servir à Fenseignment du droit remain (Paris 1931); Zcvcnbergen, Texten ten gebruike bijde Studie »an hei romeinsche recht (Utrecht 1947). In translation: Düll, Corpus Iuris. Eine Auswahl der Rechtsgrwtdsätze der Antike (2d cd.. Manchen I960); Pound, Readings in Roman Law (Un­coin, Ncbr. 1906); Sherman, Epitome of Roman Law in a Single Book A concise Collection of almost 700 selected Texts (New York 1937); Scharr. De Romanorum fare. Romisches Privatrecht, lateinisch und deutsch ausgewählt, übertragen, erklärt und eingeleitet (Zürich I960); Hausma- ningcr. Casebook zum romischen Sachenrecht (Wien 1974).

article from which the ideas of the authors noted have been gained-the hope is that these have been accurately reflected - but also call attention to the recent books or articles which offer a starting point for further research. The whole of chapter III is directed to the student who wishes to carry on, either on his own or under the guidance of a professor. A reading knowledge of Latin, together with German. Italian and French-ancient Greek is need­ed in some fields - opens the door to the oldest, and still one of the most exciting, areas of legal research.