From Free Life, Issue 23, August 1995
ISSN: 0260 5112

I began to read this attractive little volume feeling rather guilty. In the dawn of the 1980s when I was still at school, I had read quite a lot about Roman law. Then - as so often happens with compulsory education - I had gone on to forget most of it. Or so I thought.

Not to worry, though, for possibly the most striking point made by the essays in The Roman Law Tradition is the sheer ubiquity of Roman legal thought. It gets everywhere. Most of us do it all the time. When we argue by analogy, or assume that it is wrong for someone to judge a case where he has a material interest, or do any number of similarly conventional things, we are demonstrating habits of mind which have their origins in Roman legal practice. How the local law of a small, central Italian city-state should come to be such a major force in the history of Western thought is, in itself, a remarkable story. The Roman Law Tradition recounts it with clarity and vigour.

In the early sixth century the Emperor Justinian arranged for the writings of classical Roman jurists (produced circa 100 BC - AD 250) to be collected. The results were the Digest, Codes, and Institutes. These works were the basis of law in the Eastern Empire until the fall of Constantinople in 1453, but long before that time the influence of the Roman law tradition had spread far afield.

In Europe, the first great rebirth interest in Roman law occurred in the eleventh and twelfth centuries. The Investiture Crisis (circa 1075-1122) had pitted the Pope against the Holy Roman Emperor, as each attempted to exert his influence over the clerical hierarchy. It was this dispute - obscure now, but terribly exciting at the time - which sent scholars back to the almost-forgotten texts, searching for a principle which would benefit one side or the other. From that point onward, Roman law remained central to European intellectual life. In the seventeenth century, Hugo Grotius and his followers based their systems of idealised, "natural" law on Roman legal tradition. Such systems supplemented the patchwork of local and national practice, and hence were the basis for international legal theory. And on a national level, Roman law provided the basis for two influential legal codes: the Prussian Code (1794) and the French Civil Code (1804). Roman law was a formative influence on Islamic law, and aspects of Roman practice appear in Slavic mediæval documents, in present-day Scots law, and in almost every country where European colonisation had an impact.

The contrasting legal tradition is that of the English Common law, although The Roman Legal Tradition makes it clear that this distinction is not as clear-cut as many have often supposed. From as early as the twelfth century, English jurists were consciously protecting indigenous legal custom from Roman influence. In England the study of law was centred around the Inns of Court, not in the Universities as in continental Europe. Thomas Aquinas had, in the thirteenth century, used the Roman legal tradition to create a theory of natural law grounded in Roman Catholic theology. The English Reformation (circa 1532-1559) was something of a victory for Common lawyers, and as the English ever more consciously drew away from Continental Europe, Roman law was regarded with distrust - as a basis for absolutism and Papal tyranny.

Yet it could not be ignored so easily. The lack of clear expositions of Common law meant that many students turned back to printed works based on Roman legal theory, with the result that intellectual categories, language and methodology of the courts took on a Roman substructure. Further, other English legal institutions - the ecclesiastical courts, the University courts, the Courts of Admiralty and Chancery - were deeply influenced by Roman thought. The English Enlightenment of the seventeenth century showed a rebirth of interest in Roman law and those who had worked within its traditions. Both Locke and Hobbes were apparently influenced by Grotius, and hence by his Roman antecedents. As late as the mid-nineteenth century, Roman law was still being cited in English courts.

Indeed, when this book comes to discuss the nature of the Roman legal tradition, it becomes obvious how very central to contemporary Western thinking it has become. The division of law into the laws of persons, things, and actions is an invention of Roman jurists. The very idea that law is a discrete area of study, overseen by learned professionals (lawyers, judges) is a fundamentally Roman one. Indeed, the habit of distilling abstract principles from one concrete case and applying them to another - something central to Common law practice - is another Roman idea.

The individual essays included in the hook explore a number of facets of Roman law, and in doing so, open up a series of broader questions. There is a very interesting discussions of the way that language shapes legal understanding of liability. There is an examination of the dangers when the legal and popular definitions of an offence begin to diverge - very much a present-day concern. Other points touched upon include the development of textual criticism, and the differences in the way lawyer and historians regard legal evolution. For a fairly slim volume, The Roman Law Tradition provides a remarkable amount to think about.

Who should read this book? No special knowledge of law is assumed, but several of the essays do require familiarity with classical and medieval Latin. Having cleared that minor hurdle, however, The Roman Law Tradition is stimulating stuff- and more relevant than one might immediately assume. General dissatisfaction with both the efficacy and legitimacy of the state legal apparatus surely heralds progress towards a more polycentric, competitive system of conflict-resolution. As we watch developments and perhaps make our own choices between competing systems, it is refreshing to go back to the basic principles underlying conventional ideas of justice.

One theme which emerges from this book is the competitive success of certain Roman legal habits. They have been able to make the transition from local custom to international thought, and have permeated areas and legal structures where they faced concerted opposition. It seems unlikely that we have heard the last of the Roman law tradition.

Bunny Galloway