Why Study Roman Law? The Durability of Roman Law [No. 86]
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Why Study Roman Law? The Durability of Roman Law [No. 86]


Roman law, like every other early system of
law, has a series of elements which would never survive today. Most notably the Roman law of slavery, which
was highly sophisticated, which is not to say that it was morally defensible. When Justinian wrote about this in his Institutes
around 532 or so A.D. what happened was, he said, quite simply, “The natural state of
all man is to be free. We have an institution of slavery. I’m working for the emperor and so therefore,
what you must understand under these circumstances is that a posit of law, the way things go,
is in conflict with the natural law.” But we have to figure out the way this posit
of law developed, and then you get this incredibly sophisticated body of Roman law which, oddly
enough continues to have relevance even after slavery is gone, because it starts to tell
you about the nature of limited liability for corporations, about principles of agency
and joint ownership and the like so that you can learn an enormous amount from a system
whose fundamental moral premise everybody rejects today. Once you understand how the thing is put together,
you will never look at the common law or American constitutional law again in exactly the same
way. You have two points of reference for every
particular problem instead of one. If it turned out that the Roman solutions
had died, this might be regarded as a rather odd enterprise, but there are two things about
Roman law that one has to remember. One is that the system of law was powerful
enough so that 2000 years ago essentially what it did was organize the basic structures
of an empire which has never been equaled in the course of human history in terms of
its influence, scope, and power. You cannot do that with respect to a legal
system which is fundamentally flawed. So they must have been doing something right. Even if they, given the lack of theory in
the way in which they worked, could not explain why it was that their system worked, what
you can do when you teach Roman law is take some innocent looking rules and then compare
them to modern legal theory about how it is that legal systems are put together and the
trick here is to understand that the modern analysis of how law works tends to validate
the kinds of conclusions that the Romans were able to do.

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