An Introduction to Roman Law

An Introduction to Roman Law

An Introduction to Roman Law

An Introduction to Roman Law

Synopsis

This book sketches the history of Roman Private Law from the Twelve Tables to modern times, and sets out the elements of the system. It does not attempt to summarize the whole law, but explains and evaluates its most characteristic and influential features.

Excerpt

This 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 achievement 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 distortion 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 . . .

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