New Perspectives in the Roman Law of Property: Essays for Barry Nicholas

By Peter Goodwin Birks | Go to book overview

14
'Equitable' Remedies for the Protection of Property

PETER G. STEIN

For the last fifty years it has been a commonplace among writers on the character of classical Roman law that it shared what Fritz Pringsheim called 'an inner relationship'1 with English common law. This relationship was in the first place based on the fact that both Roman law and English law were built up through the discussion and decision of cases. Their rules were not in the form of broad propositions laid down by a legislature but rather were narrow statements declared in the context of particular sets of facts. Despite the number of statutes and other examples of ius scriptum, the essence of both laws was seen to be ius rather than lex, that is, law 'discovered' in debates among experts -- the Roman jurists and the English judges -- and elaborated by them.

A second, and related, feature of both laws is that legal development centred around the scope of particular forms of action -- the iudicia promised by the Roman praetor in his edict and the writs set out in the English Register of Writs.2 So in both laws substantive rules grew out of the elaboration of remedies.

Thirdly, both Roman law and English law contain two more or less distinct bodies of rules: on the one hand, the traditional rules, which in the course of time became rigid and unsuited to new conditions, and, on the other hand, a more flexible set of rules based on ideas of fairness and justice, which mitigated the harsher aspects of the old law. The latter were based on magisterial innovation: the ius honorarium in Rome and the equity administered by the Chancellor in England.3 However, despite the obvious similarities, the fact that in Rome the praetor applied both the traditional ius civile and the new ius honorarium in one jurisdiction, whereas in England equity and law were

© Peter G. Stein 1989.

____________________
1
"The inner relationship between English and Roman Law" ( 1935) 5 Cambridge L.J.347 (= Gesammelte Abhandlungen, i (Heidelberg, 1961), 76).
2
H. Peter, Actio und Writ (Tübingen, 1957); rev. B. Nicholas, IURA 9 ( 1958), 235, and P. Stein, Studia et Documenta Historiae et Iuris, 24 ( 1958), 335.
3
W. A. Buckland, "Praetor and Chancellor", Tulane L. R. 13 ( 1939), 163; d. P. Stein, "Equitable Principles in Roman Law", Equity in the World's Legal Systems, ed. R. A. Newman ( Brussels, 1973), 75 ff.( = Stein, The Character and Influence of the Roman Civil Law: Historical essays ( London, 1988), 19 ff.).

-185-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited page

Bookmark this page
New Perspectives in the Roman Law of Property: Essays for Barry Nicholas
Table of contents

Table of contents

Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this book
  • Bookmarks
  • Highlights & Notes
  • Citations
/ 233

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.