This volume comprises papers presented by leading Romanists at a conference held in 2008 at the American Academy in Rome. It examines aspects of the Roman law of obligations and, to a lesser extent, the legacy of earlier Romanist scholarship. McG.’s introduction, ‘A Conference on Roman Law: the Future of Obligations’, discusses the aims of the conference before setting out and developing some of the points raised in the subsequent chapters.
Chapters 2 to 5 focus on Roman contract law. ‘The Roman Conception of Contract’ by R. Fiori tests the consensualist view of Roman contracts against texts drawn from the Digest. He concludes that ‘the jurists arrived at a “general – that is, nontypical – protection” of contracts’ (p. 65) rather than any general theory of contract. ‘Roman Contracts and the Construction of Fault in Their Formation’ by F. Procchi submits that the recognition of a party's limited negative interest in the “‘failed conclusion of the contract’” (p. 91) in German law was devised by Jhering through the extension of the Roman sources. ‘Status and Contract in Ancient Rome With Some Thoughts on the “Future of Obligations”’ by C. Masi Doria expands upon Sir Henry Sumner Maine's hypothesis that social orders evolved from being status-based to become contract-based. She confirms with reference to specific legal examples that the status-based social structure in Rome was progressively replaced with one which was contract-based, but also suggests that Rome reverted to a status-based social structure in the third and fourth centuries. ‘Theory and Practice in the Roman Law of Contracts’ by P. du Plessis examines the form, development and implementation of the landlord's hypothec as well as the circumstances under which tenants had recourse to the related interdict. He evaluates their application in two practical examples: the payment of rent to a third party and the subletting of a discrete part of the property.
Chapters 6 and 7 examine the adaptation of private contracts by public officials. ‘Obligations in Classical Procedure’ by E. Metzger demonstrates that the praetor created a debt conditional on litigating parties failing to adhere to procedural rules or bringing vexatious litigation. He lauds this adaptation of private contracts as a credible method both of warranting parties’ good behaviour, and of ensuring that it was the affected party (rather than the treasury) which benefited from the debt so created. ‘Public Building Contracts in the Roman Republic’ by J.M. Rainer examines the role of censors or local duouiri, and to a lesser extent that of the senate, in administering contracts for public works. He suggests that these contracts were ‘adaptation[s] of patterns in use between private citizens’ (p. 187) and highlights their special nature with reference to the terminology used, their recording and the security provided for their completion.
The next two chapters examine law in the social context. ‘Roman Economic Policy and the Law of Contracts’ by D. Kehoe explains that members of the Roman upper classes tended to be risk-adverse in their investments. He proposes that the law of both agricultural tenancy and agency developed ‘not necessarily to maximise economic activity but, rather, to help Roman property owners’ (p. 210) acquire profit while maintaining financial stability. ‘Gender and the Roman Law of Obligations’ by N. Benke suggests that the law of obligations in Rome ‘largely support[ed] women's autonomy’ (p. 221), but also argues that none the less ‘Women [were] excluded from economic activities that could strengthen their societal presence in a way that would consequently lead to their becoming significant players in the state's politics and administration’ (p. 234).
The next three chapters discuss aspects of the law of delict (tort). ‘An Anthropology of Fault at Rome’ by S. Randazzo examines the connection between responsibility, liability, fault and adherence to social norms. Randazzo proposes that there was in early Roman law a largely objective standard of fault but that there was a later ‘effort to “subjectivize” culpa’, and discusses the extent to which this was ‘caught up with the appraisal of diligentia’ (p. 261). ‘Roman Delicts and Criminal Law: Theory and Practice’ by C. Cascione examines the ‘fluidity’ of the distinction between private and public wrongs. He discusses the perception that wrongdoing resulted in being bound (literally or legally), and sets out the increasingly prominent role of the state in repressing wrongdoing. ‘Roman Delicts and the Construction of Fault’ by M.F. Cursi suggests that interpretation of the lex Aquilia ‘move[d] away from an emphasis on penalty toward one placed on compensation for wrongful loss’ (p. 296). She does so by re-examining the history and scope of the lex and the reception into the quasi-delicts of an adapted ‘Aquilian model of liability’ (p. 314).
The penultimate chapter, ‘The Byzantine Law of Obligations’ by B. Stolte, asks whether ‘if we want to understand Justinian's law of obligations, we should study Byzantine sources’ (p. 331). After examining pacta in the Basilica and an eleventh-century case note by a judge of the high court of Constantinople, Stolte concludes that ‘an attempt was made to maintain the Justinianic system and substance of the law’ and challenges the assumption that ‘Byzantium [was] an inextricable whole of church and state’ (p. 331). The final chapter, ‘Looking Ahead to the Roman Law of Obligations: Reflections on Opportunities in Research and Pedagogy’ by McG., addresses the pedagogy of Roman law with particular reference to the case method.
This book addresses important questions in the study of Roman law through examination of diverse topics. The book throughout places particular emphasis on the importance of considering the historical development of the law, but it also provides examples of the application of other methodologies, including interdisciplinary approaches, consultation of non-legal sources, conceptual reasoning and textual criticism. It provides an insight into the work of scholars who rarely, if ever, publish in English. The book chapters are generally accessible and sections of text drawn from Latin and other non-English-language sources are usually translated, either below the text or in appendices. The book will be of great interest to students as well as scholars of Roman law.
