VOICES IN THE WILDERNESS: NEW PARADIGMS

At present the removal of Latin from the law curriculum and the con­sequent disappearance of the classics from school curricula have made expertise in Roman law an elitist pastime, which in a culture of materialism and instant gratification is no longer considered ‘relevant’.

The voices of Romanists who have argued in favour of the essential role of Roman law in European legal studies^[664] have not convinced the marketplace, and I limit my references to the oratio pro domo of Paul du Plessis,^[665] whose well researched^[666] and well argued thoughts on the topic deserve to be heard outside the choir. National and academic policymakers adhere to the belief that legal educa­tion, legal science and harmonisation can be successful without Roman law,^[667] in spite of arguments against reinvention of the wheel. The pragmatic arguments relative to the development of a European legal system have been widely and excellently canvassed by Reinhard Zimmermann^[668] and it is obvious that the same arguments apply in respect of globalisation. More esoteric beliefs strive for wider following and the philosophical argument of this essay is that the genius of the Roman jurists has been widely acclaimed, but remains often misunderstood as the texts have been interpreted within a doctrinal perspective.^[669] Generations of dogmatists have carefully selected texts from the sources in order to argue their cases with the Roman jurists as their media. Enlightened positivists have used vague references to social, economic and political factors such as class struggle,^[670] inflation,^[671] Christianity^[672] and absolutism. However, the over-riding ideas have been that the classical jurists reasoned within an established doctrine subject to steady development and always reached the correct legal solu­tion.^[673] This chapter proffers the argument that, literally and figuratively, where one stands determines the view, which in turn brings the idea of the correct legal solution under discussion.^[674] This also entails placing the individual texts into new perspectives. Authority for this relativism can be found in the work of the historian Barzun,^[675] who floated a theory of aspect. Thus, Barzun’s ideas will be briefly set out and then illustrated on the basis of recent research on the Twelve Tables, and thereafter applied to several related texts from the Corpus Iuris Civilis. The contemporary doctrinal com­munis opinio concerning these texts will be discussed, followed by a view from another room.

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