Is Roman Law a primitive system? [No. 86]
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Is Roman Law a primitive system? [No. 86]


It’s important to understand that when you’re
talking about Roman law it may be an ancient system but it is not a primitive system. If you were to try to compare Roman law to
Roman science, if you were trying to figure out whether or not you wanted to study the
theory of evolution or the theory of reproduction or the theory of heavenly bodies using Greek
and Roman science you would probably not get very far. If you start looking at the Roman text, it
represented an enormous advance in systematization of over every previous system of law anywhere
on the face of the globe. Instead of having a series of literary texts
and bits and pieces of oratorical speeches, all of a sudden you get a fully comprehended
and organized system of law. If you were to ask, “What’s the rate of depreciation?” That is, how much over the last 2000 years
have Roman law has essentially disintegrated by pressures of time and force? The answer is in the areas in which the Romans
law were their masters, the rate of depreciation is probably somewhere in the order of 10 or
15%, which means that it has phenomenal durability relative to modern systems. There are many areas where the Romans actually
had a better understanding of the basic legal principles than did the modern common law. I think the explanation for this stems from
one very simple fact: that common law the way the system tended to develop was through
judge-made increment. Judges deal with cases that arise and cases
never arise in a logical order. Roman law was not made by judges. They were relatively insignificant players
in the articulation of doctrine. Roman law was made by professors like me. What they did is they managed to systematize
and organize the particular field. Now just doing a systematization doesn’t mean
you’ve got it right, but the Romans, even though their theory lagged to some extent,
had this absolutely impeccable instinct about what the pressure points were and what the
relevant distinctions were in various areas. In many areas, for example, if you look at
Roman pleading it’s more sophisticated than the modern angle of American pleading, and
it is so, not by the standards of Roman law, but by standards of modern philosophy and
modern linguistics on how it is that language starts to organize itself. And if you start looking at the Roman law in various kinds of areas, for example, in it’s relationship to property, property held in common, property which was private, the Romans essentially had the right classification, more or less for the right reason. And so it is if you go through the contracts tort
and restitution. It’s an amazingly sophisticated system.

One Comment

  • reoc

    I was under the impression from primary sources that trials of treason and higher profile crimes involved the extensive use of torture and coercion to extract testimony and confession. There was little sophistry, only the rack and hot irons.

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