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Legal History at Glasgow

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Volume 7 [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."

[Pp. 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.

[Pp. 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

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