The Ames Foundation
Legal History at Glasgow
Issues: 2016 | 2015 | 2014 | 2013 | 2012 | 2011 | 2010 | 2009 | 2008 | 2006 | 2004 | 2002

Articles

2016 —

Fritz Schulz, Refugee Scholarship, and the Riccobono Seminar

Jacob Giltaij

Fritz Schulz (1879–1957) was among a number of German refugee scholars of Roman law at the advent of the Second World War. He left Germany for Oxford in 1939. Key to understanding his departure from Germany, and indeed a significant turn in his scholarship, is a series of lectures he gave at the University of Berlin, subsequently published as Prinzipien des römischen Rechts in 1934. The significance of the Prinzipien emerges when one contrasts the German academic world with its counterparts in the United Kingdom and the United States. There was already, before the War, a measure of transnational traffic by scholars of legal history and legal theory, but deteriorating circumstances in the German universities led Schulz to refashion his scholarship in a manner that would encourage its reception by Anglo-American scholars. This is evident not only in the Prinzipien, but also in his 1936 contribution to the Riccobono Seminar at the Catholic University in Washington, DC.

[12:1–19 | Blog on article

2015 —

The Expressive Function of Law and the Lex Imperfecta

Thomas A. J. McGinn

Legal scholars have developed the thesis that a law may convey a social meaning that reinforces or changes the norms of a community, beyond its role in establishing and enforcing rules. This is described as the expressive function of law. It is associated with the University of Chicago, though its adherents are spread more widely. At its core it invites us to consider how rules alter the social meaning of behavior, and in its more muscular forms it acknowledges and even promotes laws that create new norms of behavior. The ways in which individual scholars treat collective action problems, rational choice, and the role of government, vary considerably, however. This article suggests that the Romans themselves implicitly recognized the expressive function of law and indeed employed it with success. The principal example is the lex imperfecta. This is a term from antiquity, somewhat disputed, used to describe a statute that prohibits or discourages behavior without assigning a penalty or otherwise voiding the effects of the underlying acts. Other examples from antiquity are considered also.

[11:1–41 | Blog on article


A Hypothesis regarding Justinian's decisiones and the Digest

Halcyon Weber

It is frequently asserted that the Justinianic legal enactments that resolved ancient juristic disputes (the quinquaginta decisiones ["Fifty Decisions”] and so-called constitutiones extravagantes) were reflected within the Digest, the original constitutions ending up devoid of any practical purpose. It does indeed seem logical that these legislative acts were conceived so as to assist the antecessores in their daunting task of sifting through the classical-era writings. Because the legal controversies had now been resolved, it would be clear which side to take, and which texts to choose and which to discard; or failing the identification of relevant texts, how to ensure that the reforms were suitably represented through the infamous interpolationes. And even if helping the compilers had not been the original purpose behind these laws, it seems inevitable that their ready-made solutions were relied on as valuable guidance. This article seeks to examine such a standpoint in the context of the decisiones, after first considering how these very provisions should themselves be identified.

[11:42–117

2014 —

The Enigma of Samuel Parsons Scott

Timothy G. Kearley

Samuel Parsons Scott (1846–1929) single-handedly translated into English the Corpus Juris Civilis, the Visigothic Code, and the Siete Partidas. The last of these was very well received and not long ago reprinted in a new edition. The translation of the Corpus Juris Civilis, published as The Civil Law (1932), was criticized strongly but has been consulted frequently because, until recently, it contained the only published English translation of Justinian's Code. Almost nothing has been known about Scott himself, as he was an independent scholar who lived and worked in the small American town of Hillsboro, Ohio. This article uses information obtained from Hillsboro newspapers, local histories, probate court records, and the catalog of Scott's personal library, to describe his life and the details of his work. It proposes an explanation for why he went from being a successful small-town business man, who wrote about history and his travels as an avocation, to being a recluse who devoted his last years to translating ancient laws. The article's analysis of Scott and his library also suggests some possible explanations for the flaws in his translation of the Justinianic Corpus.

I. Introduction, 2 — II. Early years, 4 — III. Civic leader, 8 — IV. Reputation lost, 10 — V. Scott's writing career, 14 — VII. Conclusion, 34 — Appendix 1: Writings of Samuel P. Scott in Chronological Order, 35 — Appendix 2: Translations of Justinianic Works in Scott's Library, 37.

[10:1–37 | Blog on article

Review

Barbara Biscotti

The Division of Wrongs: A Historical Comparative Study. By Eric Descheemaeker. Oxford: Oxford University Press, 2009. xxv + 300 pp. ISBN 9780199562794..

[10:38–45

Review

Tammo Wallinga

Iniuria and the Common Law. Edited by Eric Descheemaeker and Helen Scott. Hart Studies in Private Law, 9. Oxford and Portland, OR: Hart Publishing, 2013. xxxii + 244 pp. ISBN 978-1-84946-503-8.

[10:46–50

Review

Carmen Tort-Martorell

Compiling the Collatio Legum Mosaicarum et Romanarum in Late Antiquity. By Robert M. Frakes. Oxford Studies in Roman Society and Law. Oxford: Oxford University Press, 2011. 384 pp. ISBN 978-0-19-958940-1.

[10:51–57

Review

Jorge Menabrito Paz

Das Edikt de pecunia constituta. Die römische Erfüllungszusage und ihre Einbettung in den hellenistischen Kreditverkehr. By Johannes Platschek. Munich: C. H. Beck, 2013. 292 pp. ISBN 0978-3-406-64758-1.

[10:58–67

2013 —

An Outline of Roman Civil Procedure

Ernest Metzger

This is a broad discussion of the key feature of Roman civil procedure, including sources, lawmaking, and rules. It co­vers the three principal models for procedure; special proceedings; appeals; magistrates; judges; and representation. It takes ac­count of new evidence on procedure discovered in the last century, and introduces some of the newer arguments on familiar but con­troversial topics. Citations to the literature allow further study.

Introduction, 1 — Surviving evidence of civil procedure, 3 — The scope of the law, 7 — The two stages, 9 — Challenges, reviews, appeals, 11 — Principal models and special proceedings, 13 — Legis actio, 17 — Formulary procedure, 21 — Cognitio, 26 — Legacy, 29.

[9:1–30


Between Slavery and Freedom: Disputes over Status and the Codex Justinianus

Judith Evans Grubbs

The third-century rescripts found in the Code of Justinian provide numerous examples of disputes over status which had come to the emperor's attention. This article explores the situation of those in the liminal status between slavery and freedom as seen in the rescripts. At the same time, however, it seeks to locate the rescripts in their sixth-century context, as Justinian's guide to the law of his own day.

I. The evidence, 32 — II. Proving status, 36 — III. Kidnapping and illegal enslavement, 50 — IV. Capture and enslavement by external enemies, 55 — V. Flight and passing as free, 64 — VI. The importance of 212, 75 — VII. Conclusion: Justinian and legal spolia, 86

[9:31–93


Review

O. F. Robinson

Société, économie, administration dans le Code Théodosien. Edited by Sylvie Crogiez-Pétrequin and Pierre Jaillette. Contributions by Simon Corcoran, Sylvie Crogiez-Pétrequin, Paola Cuneo, Giovanni De Bon?ls, Roland Delmaire, Lucietta Di Paola, Julien Dubouloz, Wanda Formigoni Candini, Christel Freu, Laurent Guichard, Olivier Huck, Christophe Hugoniot, Pierre Jaillette, Juan-Antonio Jiménez-Sánchez, Aude Laquerrière-La-croix, Patrick Laurence, Andrea Lovato, Arnaldo Marcone, Aglaia McClintock, Bruno Pottier, Francesca Reduzzi Merola, Francesco Salerno, Benet Salway, Boudewijn Sirks, Emmanuel Soler, and Witold Wolodkiewicz. Villeneuve-d’Ascq: Presses Universitaires du Sept¬entrion, 2012. 558 pp. ISBN 978-2-7574-0392-1 (paper).

[9:94–98

2012 —

Clyde Pharr, the Women of Vanderbilt, and the Wyoming Judge: The Story behind the Translation of the Theodosian Code in Mid-Century America

Linda Jones Hall

When Clyde Pharr published his massive English translation of the Theodosian Code with Princeton University Press in 1952, two former graduate students at Vanderbilt University were acknowledged as co-editors: Theresa Sherrer Davidson as Associate Editor and Mary Brown Pharr, Clyde Pharr’s wife, as Assistant Editor. Many other students were involved. This article lays out the role of those students, predominantly women, whose homework assignments, theses, and dissertations provided working drafts for the final volume. Pharr relied heavily on their work, as well as on the work of Justice Fred Blume of Wyoming, who supplied to Pharr his unpublished translation of Justinian's Code and drafts of parts of the Theodosian Code. Pharr’s debt to Theresa Davidson was substantial and unevenly acknowledged, and this led to a dispute and a great deal of acrimony, until Davidson ultimately won the right to have her scholarship acknowledged in the publication of the Code. The evidence for this article comes from previously unpublished materials, including those held by the Davidson family and relatives of other students; Princeton University Press; Special Collections and University Archives at the Jean and Alexander Heard Library at Vanderbilt University; and the University of Wyoming College of Law.

[8:1–42


Leviticus, the Emperor Theodosius, and the Law of God: Three Prohibitions of Male Homosexuality

Timothy D. Barnes

The present article argues, following Edoardo Volter­ra, that the so-called Mosaicarum et Romanarum legum collatio is a Jewish compilation, not a Christian one. The argu­ment has three stages. (1) The transmitted title of Lex Dei quam praecepit dominus ad Moysen, which is authentic, was supplanted in the late sixteenth century by the false title that became con­ventional. (2) As extant, the work represents a revision made in Rome in or shortly after 390 of a work originally composed early in the fourth century. (3) The reviser of the work in 390 or later has subtly modified the Latin translation of Leviticus 20.13 in the title De stupratoribus (Lex Dei 5.3) to bring it more into line with Theodosius’ law of 390 shutting down male brothels in Rome (Co­dex Theodosianus 9.7.6).

[8:43–62


Fragmenta Londiniensia Anteiustiniana: Preliminary Observations

Simon Corcoran and Benet Salway

This article gives a preliminary account of seventeen small parchment fragments, which have been the subject of detailed study by members of the team of the Projet Volterra since the end of 2009. The fragments have been identified as coming from a legal text in Latin, indeed possibly all from the same page, written in a fifth-century uncial book-hand, but with some numeration and glosses in Greek. The fragments contain part of a rubricated title, as well as the headings and subscripts to several imperial rescripts of third-century emperors (Caracalla, Gordian III and the Philips are explicitly named), organized in a broadly chronological sequence without intervening commentary. Three rescripts overlap with texts known from the Justinian Code (C.7.62.3, 4, and 7). It is argued here that the work in the fragments is from neither the first nor second editions of the Justinian Code, nor from a juristic miscellany (similar to the Fragmenta Vaticana, Lex Dei, or Consultatio). Despite the appar­ently anomalous presence of a tetrarchic rescript (otherwise typi­cally attributed to the Hermogenian Code), the conclusion is that these fragments most plausibly represent the only known remains of a manuscript of the lost Gregorian Code. An appendix gives some sample texts, including all the material overlapping with the Justinian Code.

[8:63–83

2011 —

In Dubious Battle: An Economic Analysis of Emperor Hadrian’s Fish and Olive Oil Laws

Morris Silver

"Cut out the middleman!" is a familiar advertising slogan and an article of faith for some modern consumers. Heeding the slogan is a matter of free choice, however. The first part of this article argues that the emperor Hadrian was convinced that middlemen served no productive purpose and only raised transaction costs. So convinced indeed that he employed the power of the state to exclude them from participation in markets, most famously from the fish market at Eleusis. The anti-middleman policy had damaging economic results. The second part of the article summarizes the details of Hadrian's Athenian Olive Oil Law and then relies on economic theory to predict its economic impact in the short and the long run. It is concluded that Hadrian's policy resulted in a decline in the production of Athenian olive oil, which constituted a misallocation of scarce productive resources. Hadrian's law increased administrative and transaction costs and, predictably, it transformed Athenian consumers, his chosen beneficiaries, into "evildoers" and "profiteers."

[7:1–15


What did occidere iniuria in the lex Aquilia Actually Mean?

M. Floriana Cursi

The first chapter of the lex Aquilia imposed liability for occidere iniuria. The prevailing view is that "iniuria" was originally understood objectively ("unlawfully"), though some argue that it conveyed a subjective notion of fault or a will to offend. We can in fact detect a subjective notion in iniuria from the very beginning when we recognize that the term borrows from the earlier delict of iniuria, which entailed dolus. An iniuria against a slave by wounding was a contumelia against his master. This logic was carried over to the lex Aquilia: the occidere iniuria of a slave was a contumelia to the master and indeed took from the master's patrimony. The requirement of intentional fault (dolus) came with the borrowing: occidere iniuria meant "to kill willfully." The later introduction of a third chapter to the lex Aquilia and the development of fault based on negligence (culpa) was not, on this view, a newly found subjective basis for fault, but the extension of an existing subjective basis to a wider number of cases.

[7:16–29


On Stolen Swine, Fished Fisherman, and Drowned Dogs

Thomas Finkenauer

In Digest 41.1.44, Ulpian relates a case discussed by Pomponius. Wolves steal pigs supervised by the pig owner's swineherd. A farmer on a neighboring estate pursues the wolves with dogs, which snatch the pigs from the wolves alive. The question is, to whom do these pigs now belong? Pomponius' dilemma is not immediately obvious: domestic pigs should remain the property of their owner until dereliction, in the manner of any object. Yet Pomponius seems willing to assimilate the stolen swine to wild animals, in circumstances in which they would have been doomed to perish without a third party’s intervention. Indeed Pomponius ultimately resolves the question in favor of the pig owner by reference to the notion of "retrievability": it matters whether the pigs are able to escape the ordeal alive. We may presume that Pomponius' difficulty with this case arose from his reluctance to leave the rescuer empty-handed. The fragment was discussed in the law school of Orléans in aid of a comparable case, and again one can detect a desire to reward the rescuer. In 1902 the fragment was cited by Rudolf Stammler for the proposition that an owner's right to exclude others from an object will cease at the precise moment the object is no longer retrievable. In sum, the fragment reveals Pomponius' qualities as a jurist who avoids rigid thinking and seeks a solution from several points of view.

[Pp. 30–44

2010 —

Benignior interpretatio: Origin and Transformation of a
Rule of Construction in the Law of Succession

Martin Avenarius

This article discusses the origins and development of the benevolent interpretation of wills. Modern law tends to construe a will, as far as possible, in a way that gives effect to the testator's intention and consequently avoids intestacy. This principle derives from a historical development which traces back to a Roman concept of benignior interpretatio, established by Ulpius Marcellus in the second century AD in a case where the testator's intention was unclear and the results of possible interpretations were even contradictory. Marcellus suggested interpreting the testator’s behavior with regard to his intention, in so far as it can be ascertained, at least partially, as a hypothetical intention. On the basis of an evaluative judgment Marcellus found a solution which is, as far as possible, in the testator’s interest (benignior).

[6:1–21


Review

Andrea Colorio

Die Rechtsetzung Mark Aurels zur Sklaverei [Akademie der Wissenschaften und der Literatur, Mainz: Abhandlungen der geistes- und sozialwissenschaftlichen Klasse]. By Thomas Finkenauer. Stuttgart: Franz Steiner Verlag, 2010. 108 pp. ISBN 978-3-515-09677-5 (paperback).

[6:22–28

2009 —

The Roman Division of Wrongs: A New Hypothesis

Eric Descheemaeker

This article examines the rationale of the Justinianic division of wrongs into delicts and "quasi-delicts." Taking as its starting point the assumption that the distinction corresponded to that between fault- (culpa-) based and situational liability, it hypothesizes that the quasi-delictal appendix arose after the time of Gaius' Institutes from a contraction of the Roman concept of a civil wrong (delictum): its scope would have narrowed from an unlawful liability-creating act to a blameworthy such act, thereby rejecting, outside of the delictal class proper, instances of liability regardless of fault.

[5:1–23

Confusio: Reference to Roman Law in the House of Lords
and the Development of English Private Law

James Lee

This paper examines the use of Roman law by members of the House of Lords in three recent decisions: Fairchild v. Glenhaven Funeral Services, 2002 U.K.H.L. 22; Foskett v. McKeown, [2001] 1 A.C. 102; and OBG v. Allan, 2007 U.K.H.L. 21. The contrasting views of Professor Peter Birks and Professor Sir Basil Markesinis are considered, and it is argued that within these decisions can be seen the value of reference to Roman law.

[5:24–66

Review

Simon Corcoran

Codex Theodosianus: Le code Théodosien V. Edited and translated by S. Crogiez-Pétrequin, P. Jaillette, and J.-M. Poinsotte. Turnhout: Brepols Publishers, 2009. 523 pp. ISBN 978-2-503-51722-3.

[5:67–74

Review

Daniele Mattiangeli

Latin American Law: A History of Private Law and Institutions in Spanish America. By M. C. Mirow. Austin: University of Texas Press, 2004. 359 pp. ISBN 978-0-292-72142-5 (paperback).

[5:75–79

2008 —

Inheritance Rights of Nonmarital Children in Late Roman Law

Joshua C. Tate

Late Roman legislation regarding the inheritance rights of nonmarital children is a tangled web of seemingly conflicting constitutions. Focusing on the period 371–428 AD, this Article argues that, when two particular Western laws from that era are considered alongside others issued at the same time, it is possible to discern some wider legislative trends that may help to contextualize the different attitudes shown toward nonmarital children. C.Th. 4.6.4 (371), a Western law bene?cial to nonmarital children, can arguably be linked with another Western law issued shortly afterward granting a privilege to the daughters of actresses, another disfavored class in the late empire. On the other hand, the later Western constitution C.Th. 4.6.7 (426–427), the exact content of which is uncertain and disputed, appears to have been issued at a time when the Western consistory was especially concerned with promoting the interests of legitimate heirs. This lends support to the theory that the Western C.Th. 4.6.7 (and not a subsequent Eastern constitution hypothesized by Antti Arjava) was the law referred to in C.Th. 4.6.8 (428) as adopting a harsh position with regard to nonmarital children.

[4:1–36

Problems Concerning familia in Early Rome

Carlos Amunátegui Perelló

This article discusses the meaning of familia in early Rome. The word seems orginally to have had no meaning coincident with the modern word "family." Rather it carried one of two other broad meanings, the earlier one economic, the later one based on relationship. It referred first to the economic family, analogous to patrimony, but including the family house, and even the group of persons who lived in the family house. It next came to signify a group of persons joined by relationship, eventually undergoing division into familia proprio iure and familia communi iure, assimilated respectively to the much older notions of adgnatio and cognatio.

[4:37–45

The Creation of Legal Principle

P. J. du Plessis

This article examines the process whereby legal principle was created in the formative period of the ius commune (1100–1400). It uses a speci?c example from the realm of the law of letting and hiring to argue that distinct phases can be identified in this process. An appreciation of the existence of these phases, in turn, casts new light on the variety of specialized cognitive techniques employed by medieval jurists to transform Roman legal rules into the "common law" of Europe.

[4:46–69

 


 

Earlier volumes under the print ISBN 1551-1375

 

Volume 3 [2006]

This volume contains contributions by David J. Bloch, Robert M. Frakes, Tony Honoré, Ernest Metzger, Bernardo Periñán, P. J. du Plessis, Lourdes Salomon, and Helen Scott.

Volume 2 [2004]

Law for All Times. Essays in Memory of David David Daube, edited by Ernest Metzger. This volume contains contributions by John W. Cairns, Mark Godfrey, Cornelius van der Merwe, Ernest Metzger, Alan Rodger, Joseph Georg Wolf, and Reuven Yaron.

Volume 1 [2002]

This volume contains contributions by James A. Brundage, M. H. Hoeflich, Jasonne Grabher O'Brien, Bernardo Periñán, Salvo Randazzo, and Andreas Wacke.


RSS Feed  ·  Twitter  ·  Facebook

Content and design © Copyright 2017 by the editor and board of Roman Legal Tradition. All rights reserved. The materials on these pages may be used for non-commercial purposes.