Bryn Mawr Classical Review 2013.10.43
Thomas A. J. McGinn (ed.), Obligations in Roman Law: Past, Present, and Future. Papers and monographs of the American Academy in Rome, 33. Ann Arbor: University of Michigan Press, 2012. Pp. viii, 367. ISBN 9780472118434. $75.00.
Reviewed by David M. Ratzan, Temple University (firstname.lastname@example.org)
Table of Contents
“So what is to be done with Roman law?” Thus Bruce Frier in the opening of a review article at the turn of the millennium.1 The all-too-familiar crisis of “relevance” in classics and the humanities is particularly acute in Roman law: long since vanished from most American law schools, Roman law has since the 1970s been increasingly marginalized in its former redoubt, the European law curriculum.2 Frier continued:
Roman law is a hard field, requiring not only competence in the various linguistic and historical skills needed for studying classical texts, but also mastery of the elaborate analytical arts that lawyers routinely deploy. But should the chain of scholarly tradition once be broken, a real danger arises that an immense body of knowledge will soon come to seem remote and incomprehensible ... If, as I now think inevitable, Roman law has commenced its “descent into history,” in the sense that the field has lost its former legal urgency and is finally being re-absorbed into the more detached scholarly ambit of classical studies, what is still unclear is whether it can survive in more than a “vulgar,” simplified form.
The instant volume is a response to this crisis by one of Frier’s most prominent students, Thomas McGinn, who in 2008 organized a conference on “The Future of Obligations.” The purpose was to explore the “fundamental transformation” reshaping the study and teaching of Roman law adumbrated by Frier (and others), namely its historicization, but through the particular lens of obligation, which corresponds to what those of us in the common law tradition understand as contract, tort, and certain aspects of criminal law. To this end McGinn assembled an all-star cast of contributors, who have now produced a dozen studies on obligation in Roman law. The volume is indeed subtitled “past, present, and future,” but most of the essays retain an explicit interest in the future.
The book is organized thematically. Chapters 2 through 8 treat contractual obligation, moving from theoretical or doctrinal concerns to discussions of application, practice, or enforcement. Chapter 9, which considers both contract and delict, serves as a pivot to Chapters 10 through 12, which focus exclusively on delict. Chapter 13 provides a historical coda, exploring the Byzantine Nachleben of the Roman law doctrine of informal agreements (pacta). For his own part, McGinn offers an impressively wide-ranging and substantive introduction to the problems and themes discussed in the essays with connections to contemporary American law, as well as an epilogue, in which he looks to the future of research and pedagogy, particularly the case method, to which he has made a significant recent contribution. 3
In his bookends McGinn establishes an ambitious agenda: not only to reconnoiter the future of obligations in Roman law, but also to invite a wider audience to become part of that future:
This collection will ... interest not only Roman law specialists on both sides of the Atlantic but also ancient historians and students of anthropology, economic history, and gender studies ... We trust that this collection offers [nonspecialists] a sophisticated yet accessible point of entry to a discipline that has long seemed out of reach, even to those with an interest in the subject. (335)
It is important to note that here McGinn is not (or not merely) making an editor’s optimistic bid for a wide readership. Over the last decade several collections have appeared which explore the boundaries, limits, connections, etc. between Roman law and classical studies.4 They have largely tended to illuminate the value of philological, sociological, or historical readings of Roman legal texts (i.e., avenues of its “descent”), but only more rarely the value of the Romanist’s “elaborate analytical arts” to classicists, anthropologists, or historians.5 The latter, however, is precisely McGinn’s aim for this volume, which he hopes will be helpful in courses using the case method to teach Roman law (345) by making some core Romanist scholarship accessible to Anglophone audiences.6 Yet, as Frier admitted, Romanist scholarship can be “hard.” It is not only dominated by Continental scholars writing in their vernaculars, but also often highly technical, even esoteric—a field with a proudly autonomous set of concerns and methods, in, but sometimes seemingly not of, the ancient world. For good reason, then, has the discipline seemed out of reach (or irrelevant) to many who have the requisite background and skills (unlike most contemporary law students) to engage with the primary material. The claim of accessibility must therefore be submitted to heightened scrutiny.
First, the future of obligations. The futures are several and fascinating. This is, as one rightly expects, a strong collection. Here there is space only to describe a few of the futures indicated.
Roberto Fiori’s overture (Ch. 2) communicates what he sees as the state-of-the-art in an old but essential debate: what is a “contract” in Roman law? Does it depend on agreement, promise, reliance, or some other source or conception of obligation? The answer is of prime importance and implicated in why the Romans, for all their careful and continuous study of contracts, never developed an overarching theory of contract per se. No future is possible without this basic grounding. This is a dense essay, a tour de force as Fiori telescopes nearly a decade of work into 27 pages, proceeding from an examination of the main texts to his evolutionary account of the classical system of typical contracts, from which a true theory of contract ultimately emerged in the 16th and 17th centuries.
Federico Procchi (Ch. 3) takes a different tack. He shows how the current civil doctrine of precontractual liability depends on Jhering’s attempt to reconstruct just such a doctrine out of Roman legal texts and where Jhering went wrong. Procchi thus attempts to liberate current law from a 19th-century agenda and critique it on the basis of a fresh analysis of those same texts. This is, therefore, a future of the past, in that Procchi gives us an illustrative case in which understanding Roman law is (still) vital to interpreting and formulating contemporary law. It is, of course, a future only possible (but not therefore probable) in the civil law tradition.7
A few chapters sketch futures likely to be of immediate interest to non-Romanists, in that they engage directly with contemporary methods or concerns. Dennis Kehoe (Ch. 8), for example, brings the analytical lenses of law and economics and new institutional economics to bear on Roman agricultural leases and principal-agent relations. In a different vein Nikolaus Benke (Ch. 9: “Gender and the Roman Law of Obligations”) explores gender bias in Roman law, which was “liberal, individual, and largely gender neutral” (233), and how it interacted—in complex and not entirely predictable ways—with Roman patriarchy. Roman legal texts have not, of course, been overlooked in the historiography of the Roman economy and gender relations, but the future adumbrated here is the exploration of the economics and gender dynamics of the law itself.
Ernest Metzger and Paul du Plessis perhaps give the reader most nearly the sort of futures McGinn envisions. Metzger (Ch. 6) briefly and lucidly explains how the Praetor made up for procedural deficiencies with the law of obligations. Nothing in the substance of his discussion will be new to anyone acquainted with Roman procedure. The novelty instead comes in Metzger’s framing of the material, asking what it means that Praetors turned to obligations as devices to encourage specific behavior between litigants. What may seem obvious to us or inevitable in hindsight (e.g., allowing parties to execute pre-trial penal stipulations, essentially wagers on the outcome of a trial, as a way of testing the merits of cases) is anything but: “procedural obligations ... carry very different expectations: the obligation is not actively sought, and the satisfaction of the condition is usually something to be avoided” (168-69). It is, therefore, a certain and significant leap to harness the negative potential of obligations to effect positive procedural ends. Metzger concludes with an important meditation on the implications of this procedural reform for Kelly’s Roman Litigation (Oxford, 1966), a stinging and in some sense still unanswered indictment of the Roman legal system.
Du Plessis (Ch. 5) investigates a particular legal remedy in the law of urban tenancy, the interdictum de migrando, in an attempt to excavate both the law and the commercial practices he sees motivating its evolution. He deftly illustrates how the interdict was a response to a specific change in commercial and legal practice, as urban leases went from being routinely secured by the express mortgage of specific items to an implied floating charge on the lessee’s property. As is often the case, one set of problems (the creation of a real right for the lessor in specific property, effectively tying it up for the life of the lease, but also exposing the lessor to changes in the security’s value) was exchanged for another (the difficulty of assessing lessee solvency and identifying what property a lessor could distrain and when), to which the Praetor responded with this interdict. This development holds obvious interest not just for the legal historian: what, for example, does this shift in liabilities tells us about the Roman real estate market? The larger point here, however, is that this is a history which requires a Romanist’s reading of legal texts to write.
Next, the questions of audience and accessibility.
This is, without a doubt, a legal scholar’s book. Although McGinn helpfully explains many basic points of Roman law pertaining to obligations in his introduction and the contributors assiduously gloss Latin legal terms, most, if not all, of the chapters assume a substantial acquaintance with Roman law and occasionally contemporary law. For example, neither the difference between the promissio iurata liberti and the stipulatio operarum (which difference the author thought “superfluous in this setting to dwell on” ) nor the doctrine of promissory estoppel (7) are likely to be familiar to the uninitiated. This, of course, is only fitting: it is a book on Roman law; but ancient historians and students of anthropology, economic history, and gender studies will want to keep their handbooks at the ready.
More striking in this regard, however, are the bibliographies to several chapters, which occasionally play into the stereotype of Romanist scholarship as the product of a gated intellectual community. The idea, for instance, that one would today write a chapter on status and contract in Rome (Ch. 4) entirely from Romanist scholarship is simply breathtaking. This is not a vision of the future many are likely to find compelling.
That said, several chapters succeed admirably in lifting the hood on the workings of Roman law and the history of its scholarship, serving precisely as McGinn’s promised points of entry. The greatest obstacle to accessibility, sadly, is the quality of the prose in some of the translated chapters. In many cases, awkward or obscure expressions, a tendency to abstraction, and perniciously periodic sentences vitiate the welcome and obvious efforts that have been made to lower the disciplinary hurdles for neophytes. A few chapters are thus slow going at best, and the reader is well advised to consult the relevant summary in McGinn’s introduction before embarking on any particular chapter.
In the end, McGinn and his contributors have succeeded in assembling a volume that demonstrates to classicists and other students of antiquity the value—indeed the necessity—of learning to think like a lawyer when confronting one of the great monuments of Roman civilization, its law. In the hands of a competent teacher many of these essays will be helpful in teaching Roman law to advanced undergraduates and graduate students grounded in Classics. More certainly, the project of supplementing case books with serious Romanist scholarship in English is not merely sensible but surely vital if Roman law is not to become a truly dead letter.
1. JRA 13 (2000): 446-48.
2. Cf. du Plessis, P. J. Fundamina 16.1 (2010): 64-72.
3. Frier, B. W. and McGinn, T. A. J. A Casebook on Roman Family Law. Oxford University Press, 2004.
4. See, e.g., Aubert, J.-J. and Sirks, B. eds. Speculum Iuris. University of Michigan Press, 2002; Cairns, J. W. and du Plessis, P. J. eds. Beyond Dogmatics. Edinburgh University Press, 2007; and du Plessis, P. J. ed. New Frontiers. Edinburgh University Press, 2013.
5. Cf. Sirk’s reflections in Aubert and Sirks, op. cit. n. 4, pp. 169-81.
6. Cf. Frier JRA 24 (2011): 564-66 and McGinn BMCR 2010.12.39 on A. Riggsby’s introductory book for American students, Roman Law and the Legal World of the Romans. (Cambridge University Press, 2010).
7. Cf. du Plessis, op. cit. n2, for a critique of a similar future promoted by Reinhard Zimmerman.