Roman Legal Tradition

Simon Corcoran and Benet Salway: Fragmenta Londiniensia Anteiustiniana: Preliminary Observations

Tue, 30 Oct 2012 13:22:51 GMT

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.

Timothy D. Barnes: Leviticus, the Emperor Theodosius, and the Law of God: Three Prohibitions of Male Homosexuality

Mon, 15 Oct 2012 10:47:00 GMT

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).

Linda Jones Hall: Clyde Pharr, the Women of Vanderbilt, and the Wyoming Judge

Mon, 21 May 2012 19:53:12 +0100

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.

Thomas Finkenauer: On Stolen Swine, Fished Fisherman, and Drowned Dogs

Mon, 14 Nov 2011 20:04:18 GMT

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.

M. Floriana Cursi: What did occidere iniuria in the lex Aquilia Actually Mean?

Wed, 31 Aug 2011 12:08:17 +0100

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.

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

Fri, 19 Aug 2011 16:14:05 +0100

"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."

Andrea Colorio: Review of Finkenauer,Die Rechtsetzung Mark Aurels zur Sklaverei (2010)

Tue, 25 Jan 2011 10:14:07 GMT

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).

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

Mon, 25 Oct 2010 20:14:32 +0100

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).

Daniele Mattiangeli: Review of Latin American Law: A History of Private Law and Institutions in Spanish America, by M. C. Mirow

Fri, 26 Feb 2010 14:53:18 GMT

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).

Simon Corcoran: Review of Codex Theodosianus: Le code Théodosien V, ed. S. Crogiez-Pétrequin,et al.

Fri, 26 Feb 2010 14:51:08 GMT

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.

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

Fri, 04 Dec 2009 11:02:09 GMT

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.

Eric Descheemaeker: The Roman Division of Wrongs: A New Hypothesis

Wed, 05 Aug 2009 10:59:38 GMT

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.

P. J. du Plessis: The Creation of Legal Principle

Mon, 20 Oct 2008 11:20:14 GMT

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 identied 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.

Carlos Amunategui Perello: Problems Concerning familia in Early Rome

Thu, 30 Oct 2008 11:22:45 GMT

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.

Joshua C. Tate: Inheritance Rights of Nonmarital Children in Late Roman Law

Thu, 30 Oct 2008 11:24:52 GMT

Late Roman legislation regarding the inheritance rights of nonmarital children is a tangled web of seemingly conicting 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.