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Obligations in Roman Law
Past, Present, and Future
By Thomas A. J. McGinn The University of Michigan Press
Copyright © 2012 University of Michigan
All rights reserved.
ISBN: 978-0-472-11843-4
CHAPTER 1
A Conference on Roman Law
The Future of Obligations
THOMAS A. J. MCGINN
In recent years, the study and teaching of Roman law have undergone fundamental transformation. Many now agree that Roman law should not be isolated from the historical context in which its norms were generated; that is, they accept the need for "historicizing" Roman law rather than treating it solely as an intellectually autonomous achievement. As a field of study, it shows an increasing affinity to social history. To a certain extent, this transformation parallels developments in other areas of legal history, but it has also arisen, in no small part, thanks to an important series of reforms in European university systems. These changes, the full implications of which are still far from clear, are bound to have a lasting impact on the entire field, so much so that its future as a scholarly discipline has already been the subject of lively debate.
Two questions are raised by this transformation in our understanding. First, how should we now understand the relationship between Roman legal rules when considered as intellectual achievements in themselves and these same rules when considered as historical artifacts? The tension between these two ways of approaching the subject, which might be summarized as a distinction between taking law as law and law as history, has resonated for decades now, especially in Europe. Second, how should that understanding affect the way we teach and write about Roman law?
To address these issues, I organized a two-day conference, held in March 2008 at the American Academy in Rome. I invited a dozen speakers who had published substantially on related subjects and so were recognized authorities in this field. All but one were from European universities, a reflection of the diversity of interest in the subjects under discussion. By all accounts, the conference was a great success. We are now pleased to present its fruits in the form of this publication.
In what follows, I first lay out the main issues for consideration in this book and then summarize the contribution of each chapter, contextualizing each contribution with matter drawn from the Roman law itself and/or, in most cases, comparative material taken from modern U.S. law. The purpose is to offer a stimulus both for further research and for approaches to teaching. The latter subject in particular receives more attention in chapter 14.
Design of the Book
The task we set ourselves was to take one of the traditional subfields within Roman law, the law of obligations, and place this under renewed scrutiny. As is well known to students of Roman law, the law of obligations is an area of the private law that, together with property and succession, falls under the category of "things" (res), which itself forms one of the fundamental rubrics of private law, along with the law of persons and that of actions. "Obligations" traditionally breaks down into two subrubrics, the law of contracts (contracts are commonly defined as agreements between two or more parties that are enforceable or otherwise recognizable at law) and that of delicts, the Roman equivalent of torts (torts are civil wrongs, other than breach of contract, for which a legal remedy may be obtained). The manner in which the rules are presented in the ancient sources makes their understanding complicated, to say the least. Scholars have wrestled with these difficulties for many years, of course. Just to take one example, our most extensive single source for the classical law of obligations, the elementary textbook known as the Institutiones ascribed to the second-century jurist Gaius (to whom the categories of law outlined above can be traced), has a presentation of this subject that is widely acknowledged — not least in terms of its fundamental classification(s) of obligations — to be rather problematic, if not deeply flawed.
In fact, this area of the law, especially as illuminated by modern scholarship, is quite dynamic, despite these traditional challenges to our understanding. Before proceeding, it is worth asking if the Romans indeed had a concept, recognizable to us, of "obligations." We should begin by clarifying to what extent our understanding of this is dependent on modern, especially nineteenth-century, scholarship. Next, we can consider how unitary are the bodies of rules devoted to the subcategories of contract and delict, respectively. Did a conceptualist desire to synthesize these categories first arise among the classical jurists, Justinian's legal experts, or modern scholars? For example, did the Romans, at any point in time, develop a single, coherent concept of nonintentional fault or negligence? The same question holds for causation. There may be some analytical level on which obligations are fruitfully regarded as a unity, but in most relevant social respects, this branch of the law might be better reduced to its constituent areas, below even the general level of emptio venditio (sale) or locatio conductio (hire/ lease) or damnum iniuria datum (the wrongful infliction of harm to another's property), to specific topics such as the sale of wine or the construction industry or medical malpractice. What kinds of tension are created by these different ways of looking at legal materials, and how can the tension be resolved?
We herein investigate what overall approaches are available to us and which ones best suit the refinement of our understanding of these matters, whether this be a materialist one, an idealist one, or something else again, such as an evaluation of transaction costs. If we accept that these rules are contingent and not inevitable, which is to say that the category "obligations" is a social construct, what does this tell us about their historical development? From there, we can attempt to draw conclusions about the particular relationship between the private law, on the one hand, and the structure and content of Roman society and the Roman economy, on the other. Next, what precisely is the interest of the state? We also want to know to what extent the rules themselves reflect upper-class values and whether it is possible to speak of them as elements of an ideology.
Plan of the Book
We were very fortunate indeed in our choice of speakers, who were well prepared to address these issues and others like them. One of the consistent themes to emerge from this collection is a critical engagement with the modern scholarship on the Roman law of obligations, above all in its more traditional aspects. We owe an immense debt to this tradition, a debt that is, I believe, fully acknowledged by our authors.
It is hardly true, of course, that all modern conceptions are equally helpful in the elucidation of the Roman law of obligations. Roberto Fiori, from the Università di Roma Tor Vergata, brings that point home in this book. Fiori's chapter, "The Roman Conception of Contract," addresses a key aspect of the doctrinal development of the Roman rules in this area. Was there a trend from an objective requirement for contracting an obligation toward a standard based on the agreement (consensus) of the parties? Did the Romans know a "general theory" for contracts, and what are the implications of its presence or absence? Fiori focuses particular attention on the relationship between the element of agreement and that of the contractual bond (the vinculum iuris or obligatio) itself in the formation of a contract. On one level, he traces the course of the discussion on the part of the Roman jurists over how best to accommodate the tension between the standard types of contracts and the agreements that fall outside them, a debate that has obvious resonance beyond the Roman system of law. These issues go to the heart of our understanding of some of the core principles in this field of law and so have been subjected to extensive and intense discussion in the scholarship.
Fiori's essay points up the importance of placing in their proper historical context not only the ancient sources but also the long tradition of modern scholarship that has aimed to elucidate them. He offers an introduction to developments in the conception of contract on the part of both the Roman jurists and their modern interpreters. For the latter, the influence of the nineteenth century continues to loom large.
Contrary to some recent assumptions, commercial practices in that period were not inevitably a model of rationality and efficiency but were, in some respects, imbued with considerations of tradition and conservatism. The same might be said of the legal rules themselves, whose legacy continues to be felt despite their peculiarity in many respects. We might begin by pointing out that the principles of the common law of contracts were notably influenced in that century by the work of the Roman jurists, for example, the views of Ulpian on mistake invalidating an agreement, particularly the kind of mistake concerning the identity of the object of sale, known as error in corpore. At the same time, contract enjoyed an enormous ideological significance, shaping, for example, the approach taken by Christopher Columbus Langdell in developing the case method of teaching law. Such considerations informed nineteenth-century scholars' understanding of their own case law, as we see occurring, for example, with the venerable English case of Raffles v. Wichelhaus (1864), where the obscurity of the facts seems to have encouraged the proliferation of theory. How likely is it that the contemporary scholarly treatment of Roman law would differ in any substantial sense? And just how many of their (unexamined) assumptions have become ours?
In "Roman Contracts and the Construction of Fault in Their Formation," Federico Procchi, from the Università di Pisa, examines a specific challenge faced in the mid-nineteenth century arising from the fact that the classical Roman jurists did not, as far as we know, deal squarely with the problem of fault in precontractual liability when no contract had been concluded. Some rather contingent factors, it turns out, led Rudolf von Jhering to develop a creative reconceptualization of the Roman rules in order to address the problem of how to protect the interest of a party to contractual negotiations who has acted in reliance on the conclusion of a contract that cannot be concluded thanks to the deliberately wrongful or (a more difficult case) negligent behavior of the other party.
Jhering was extraordinarily well placed, in terms of personality and experience, to play the role of mediator between the ancient and modern legal traditions. In this particular instance, we see not only the vitality of the Roman tradition but of one of the many modern approaches taken to it. Procchi's essay suggests that the conflict between those who want Roman law to continue to play a role in the formation of modern law and those who view it as a historical subject may not be entirely irreconcilable. One might venture to assert, on the basis of what is shown here, that only through a correct understanding of Roman law in its proper context, both ancient and modern, can it hope to play such a role with any real chance of success. On a broader level, while recognizing the distinction between law as technology and law as culture, we may hesitate before accepting that this is always as clean as is sometimes supposed.
Common-law authorities have likewise labored to address the challenge of precontractual liability, with partial success at best. In this legal tradition, contracts have tended to be either fully enforceable or not enforceable at all. There is a widespread belief that liability under promissory estoppel lies regarding investments made in reliance prior to actual agreement between parties engaged in commercial negotiations. The difficulty arises that the principal case cited to justify this idea, Hoffman v. Red Owl Stores, Inc. (1965), seems, on close inspection, ill supported by any of the three main theories that are supposed to apply: a duty to negotiate in good faith, liability for negligent misrepresentation, and recovery in quasi contract for unjust enrichment. In recent years, a more flexible standard that recognizes two types of preliminary agreement to possess binding force has gained ground, first enunciated in Teachers Insurance and Annuity Association of America v. Tribune (1987).
The intellectual legacy of the nineteenth century continues to cast a long shadow over twenty-first-century concerns. In "Status and Contract in Ancient Rome: With Some Thoughts on the 'Future of Obligations,'" Carla Masi Doria, from the Università di Napoli Federico II, writes on a subject of critical interest, because it is one place where we can expect to trace with reasonable certainty the intersection of legal rules and social values. Not content with simply exploring that topic, Masi Doria broadens our understanding of the content and history of the Roman law of obligations by appropriating an important aspect of our common intellectual patrimony regarding this subject, namely, the thought of the famous nineteenth-century legal anthropologist Sir Henry Sumner Maine, whose methodology she employs in a novel way. After introductory remarks on some peculiar aspects of Maine's contribution, Masi Doria offers useful observations on the fundamental importance of status both to the historical experience of the Romans and to their law. She goes on to examine the link between status and obligation, focusing on various relations of dependency as defined by the law.
Status was regulated not only by law, of course, but also by the censors, in their operation of the regimen morum, the means by which they advanced appropriate men to and removed dishonored men from positions of social prominence and political responsibility. Here Masi Doria focuses on a particular instance where status is threatened because of the breaking of an oath, a conjuncture of status and obligation that is imperfectly realized in this case and eventually superseded entirely owing to the disappearance, in a strict sense, of the censorship under the Principate. This is part of a general trend, moving away from status in the direction of contract, that Masi Doria is able to trace more specifically in the law, such as in the rules governing the relations between ex-slaves and their former owners or "patrons," above all in the matter of operae (services) due to the latter from the former.
Masi Doria suggests the utility of Maine's thesis by demonstrating just how contingent it is. She shows that the movement from status to contract that he postulates possesses some degree of resonance for classical Roman law, though, even in this context, its explanatory power has its limits. For various reasons, the transition is not as complete or as unidirectional as the thesis by itself might suggest. Perhaps even more engaging is Masi Doria's discussion of the two historical periods, late antiquity and the recent modern era, in which she finds the flow to be reversed in important respects, in other words, where one can discern a direction moving to a significant degree from contract to status. It is refreshing to see such new life breathed into the subject of nineteenth-century writing on Roman obligations.
Some light may perhaps be shed on the subject through a glimpse of the sustained contestation that played out in connection with status and contract in the history of nineteenth-century common law. That century began with the legal doctrine of employment firmly established as a contract relation between status unequals, much like marriage — that is, between master and servant. In the United States, this doctrine was strengthened by the holding in a Massachusetts case, Stark v. Parker (1824), that laid the foundation for a view of the employment contract as setting up an authoritarian relationship in which the terms were set in key respects not by mutual agreement but by a preexisting prerogative of the employer, whose basic rights were deemed as implied. The employer had the right to command, and the employee had the duty to obey. As the century proceeded, this idea came under increasing challenge from legal scholars, who relied on a New Hampshire case with a very different outcome, Britton v. Turner (1834), while at times invoking feudalism as an analogy for the dominant ideology they opposed. Slavery was another popular point of comparison with the status-based employment contract, in criticism of the latter, until civil war and abolition, together with the disappearance of apprenticeship and other types of bound labor, somewhat paradoxically helped fuel a revival of the older, more favorable view. Employment law, after all, sanctioned an enormous discretionary authority that was enjoyed by one party to the disadvantage of another. The courts largely resisted pressure from legislatures and social developments in the field of agricultural and industrial employment that threatened the interest of employers. Developments over time were far from linear, so that even as the partisans of equity might point to some hard-won victories, twenty-first-century American employment law is hardly free from the long shadow of status.
(Continues...)
Excerpted from Obligations in Roman Law by Thomas A. J. McGinn. Copyright © 2012 University of Michigan. Excerpted by permission of The University of Michigan Press.
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