An Introduction to Roman Law

317 Pages·1976·6.801 MB·English

by  Barry Nicholas, Ernest Metzger

AN IN T R O D U C T IO N
TO ROMAN LAW
BARRY N IC H O L A S
Formerly Professor of Comparative Law
in the University of Oxford and
Sometime Principal of Brasenosc College
with an introductory foreword, revised bibliography,
and glossary of Latin terms by
ERN EST M ETZG ER
Douglas Professor of Civil I.aw
University of Glasgow
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FO R EW O R D
A
colleague once told me that, even after long years teaching Roman law,
he still reads Nicholas’s Introduction with profit. Other veterans would
say the same. This can hardly be true of many introductory textbooks in
law, and those other magic books, if they exist, would never serve both
students and scholars so wonderfully as Nicholas’s Introduction does. It
is above all a very thoughtful book. The typical Roman law textbook of
a generation earlier was efficient in communicating the rules, but lacked
the patience to explain the things that puzzle students the most: Why this
rule and not another? What problem is this rule trying to solve? Why did
the jurists not grasp what is so obvious to us? and so on. Knowledge of the
rules is never enough; students learn to make the noises of a civilian law­
yer with none of his understanding. We easily forget how much this book
rejects that older style, but we can see it and feel it in the pace of the dis­
cussion. Nicholas noticeably slows down and speeds up. He slows down
to linger over the difficult subjects like possession, where a bad beginning
would ruin a person’s understanding of almost everything that follows.
He slows down to describe the modern law, showing the staying power of
ideas that happen to be very good, or admitting the shortcomings of ideas
that got the burial they deserved. He speeds up when the subject turns to
rules and institutions that sit dumbly without telling us anything interest­
ing about the Romans or their law. Throughout the book he includes facts
about Roman social life, without which the Roman actors would seem to
us to be performing some mysterious dance.
One of this book’s qualities is perhaps noticeable only to persons who have
taught Roman law for some time. Nicholas clearly knew the minds of his stu­
dents and was attentive to their mistakes and anxieties. But he did not respond
as most of us would: by explaining the law in more detail. Instead he used their
mistakes and anxieties to think more deeply about the subject, and to find
if he could some quiet aspect of the law which few bothered to express but
which, when expressed, dispatched the problem suddenly and completely.
So for example, to the student who reads that ‘possession is a fact’ and thinks
there is nothing more to know, Nicholas says
There is ... a danger of being bemused by words unless one inquires first w hat
the Romans meant by possession as a fact. And one should perhaps begin with
what they did not mean.... [PJossession was not a fact if by that one means that
it was unregulated by law.
KORKWORH
VI
To the student who sees only pedantry in the distinction between a con­
tract and a conveyance, Nicholas says
This separation of contract and conveyance is rooted in the sound though
inarticulate principle that rights in ran, since they potentially affect everyone,
should not be secretly created or transferred, whereas there is no such objec­
tion to the secret creation of rights in personam.
To the student who studies unjust enrichment and wonders what the fuss
is about, Nicholas says
The hostility which the principle [of unjust enrichment] arouses and the diffi­
culties which it encounters derive from the fact that it claims to correct the law
by an appeal to justice.
These are the flashes of timely advice by a teacher who has listened to his
students, and now corrects the misstep before the foot has landed.
This new edition of An Introduction to Roman Law is happily not very
new. The book is a classic. Accordingly Nicholas’s text is unchanged and
only the fringes of the book amended and enlarged by a glossary, a bibliog­
raphy, and these inadequate words of praise.
E R N E S T M E T Z G E R
Glasgow, May 2008
PREFACE
T his is not intended to be a comprehensive textbook. The
customary English elementary textbook of Roman law has been
essentially an expansion of and commentary on the Institutes
of Gaius and Justinian. My purpose has been somewhat
different. The main framework of the Institutes has become a
necessary part of any thinking about Roman law, and to some
extent about law in general, and an account which abandoned
that framework would not be an account of Roman law. But
within that framework I have attempted a shift of emphasis. It
was not the habit of the Roman lawyers to make explicit the
fundamental assumptions and distinctions with which they
worked; nor could they criticize and evaluate their own achieve­
ment in the way that we, with our knowledge of its subsequent
history and of the contrasts provided by the English Common
law, are able to. I have tried to do both these things and also
to point very briefly to some of the ways in which Roman law
still survives in modern Civil law systems.
I have tried, in the first place, to draw out the fundamental
assumptions and distinctions of the Roman law and to delineate
its most characteristic institutions. In doing so I have of course
stated many of its detailed rules, since without them the skeleton
would lack life, but I have omitted much that seemed to me to
be, in a book of this size, of secondary importance. Those who
are already acquainted with the subject will each, I fear, find
that I have omitted something which to him is fundamental
and included something else which is trivial or abstruse. Such
readers will also find that on controversial points—and owing
to the peculiar character of the surviving evidence they are
many—I have either muted the controversy or, more often,
have stated without qualification what is no more than one
opinion. I have had to steer a course between two familiar
dangers. On the one hand it would be an unjustifiable distor­
tion to depict the Roman law of any period as clear and
undisputed, and on the other hand it would defeat the purpose
of an introductory book to express every qualification that strict
scholarship would demand. Where I have made a choice
PREFACE
Vili
between conflicting opinions I have thought it right to err on
the side of conservatism even where my own preference might
be for a more radical view.
I have tried, in the second place, to show the Roman law as
a living system with both merits and defects, a system made by
men who worked within limitations imposed by the conditions
of the time and by their own methods of thought. And finally
I have attempted to provide some signposts to the more signifi­
cant contrasts to be found in the Common law and to the salient
features of the Roman inheritance of modern Civil law. In a
book of this size they can be no more than signposts, and I have
made no attempt at exposition of the modern law. Moreover
within the Civil law I have confined myself to the French and
German systems, as being both the most divergent and the
most influential. I have made almost no mention of Scots law.
For this the explanation is in part my own ignorance and in
part a sense that the influence of English law has been strong
enough to blur the similarities and that of Roman law to blur
the contrasts which I was seeking.
I have said little about early Roman law, both because the
proportion of conjecture to evidence is very much higher than
in the classical and later law, and the risks of distortion in
a simplified account are correspondingly increased, and also
because the interest to be found in the primitive law is often
different in kind from that offered by the mature system, and
it is the mature system which has influenced subsequent law.
I have abandoned the main framework of the Institutes in
several respects, of which only one needs mention here. I have
given no separate treatment of Actions. This is not because I
think Actions unimportant. On the contrary, I am sure that
their main features are vital to an understanding of the law.
But I think that in an introductory book those main features
are best incorporated in the discussion of the sources and of
the substantive law.
I am indebted to a number of friends for criticism and advice.
From Professor F. H. Lawson I have derived more ideas and
insights over the past dozen years than I can now hope to
identify; and I am in particular grateful to him for reading the
manuscript of the book at a time when it had become overgrown
and for suggesting the points at which it could advantageously
PREFACE
IX
be pruned. I am greatly in the debt of Mr. G. D. G. Hall,
who subjected the final draft to a penetrating and detailed
criticism which was all the more valuable because it came from
one whose primary interest lies outside the field of Roman law.
I am most grateful also to Mr. D. L. Stockton and Dr. W. A. J.
Watson for their advice on particular sections, and especially
to Professor P. Stein who read the proofs and saved me from
a number of errors and obscurities. For those in which I have
persisted he is of course not responsible.
B A R R Y N IC H O L A S
Oxford, November ig6i
Blank Page
CONTENTS
I. H ISTO R Y AND SO U RCES OF TH E LAW
I. IN TR O D U CTIO N i
1. The claims of Roman Law i
2. The constitutional and historical background 3
The struggle between the Orders, and the Republican constitu­
tion 3
The later Republic 7
The Principate 10
The Dominate 12
II. SO URCES OF TH E LAW 14
1. Statutes 14
Lex and plebiscitum 14
Senatusconsulta 16
Constitutiones principis 17
2. Edicts of Magistrates 19
The general function of the Praetor 1 g
The particular function of the Praetor 23
Character of the ius honorarium 26
Actions and procedure of the late law 27
3. Juristic Interpretation 28
Interpretatio prudentium 28
Ius respondendi 31
The Sabinian and Proculian Schools 32
Forms of legal literature 33
The ‘classical period* 34
The Institutes of Gaius 34
The post-classical period 36
III. TH E W O RK OF JU ST IN IA N 38
The Corpus Iuris Civilis 39
Character of the Digest 42
IV. TH E SECOND LIFE OF RO M AN LAW 45
Survival in the East 45
Survival and revival in the West 46
The Reception of Roman law 48
The Humanist revival 50
Natural law 50
CONTENTS
Xll
Codification and the modern Civil law 51
The modern historical study of Roman law 53
V. IUS NATURALE, IUS G E N T IU M 54
II. LAW OF PERSONS
Introductory. The arrangement of the Institutes 60
Formalism 61
1. Main features of the law 64
Citizens and non-citizens 64
The Roman family—patria potestas 65
Proprietary incapacity of jiliusfamilias 68
Position of slaves, in law and in fact 69
2. Creation and termination of slavery 71
How slavery arises 71
How slavery ends—manumission 72
Consequences of manumission 75
Public control of manumission 76
3. Creation and termination of patria potestas 76
How patria potestas arises y 6
How patria potestas ends 79
4. Marriage 80
Main characteristics 80
Manus 82
Iustae nuptiae and non-Roman marriage 83
Concubinage 83
Legitimation 84
Divorce 85
Matrimonial property 87
5. Guardianship 90
Tutela impuberum 90
Cura minorum 93
Other forms of guardianship 95
6. Capitis deminutio 96
III. LAW OF PR O PER TY
Introductory. The Law of Things 98
1. Fundamental Distinctions 99
Property and obligations—actions and rights in rem and in per­
sonam 99