Bryn Mawr Classical Review

BMCR 2019.09.56 on the BMCR blog

Bryn Mawr Classical Review 2019.09.56

Rafael Domingo, Roman Law: An Introduction.   London; New York:  Routledge, 2018.  Pp. 238.  ISBN 9780815362753.  $150.00.  


Reviewed by Nephele Papakonstantinou, University of Athens (nephpap@phil.uoa.gr)

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Rafael Domingo provides an introduction to the essentials of Roman legal culture, namely private law as developed and implemented by the Romans in the Late Republic and Principate. The textbook belongs to a tradition of Anglophone introductory volumes on Roman law, but ranges more widely, aiming in novel fashion to cater more globally to undergraduates in pre-law.

The volume opens with a preface (viii-xi) and a chronological table of major actors, laws and institutions (xiii-xiv). It maintains strict symmetry between two parts, each of which is further subdivided into six chapters. Part I, “Roman Law in its Historical Context”, outlines the most distinctive Roman legal concepts and values, the legal institutions of the Roman state, the legal sources, the evolution of Roman jurisprudence, Justinian’s compilation, and the subsequent impact of Roman Law on the legal and political systems of the West. Part II, “Roman law in action”, is devoted to the branches of private law : actions (civil litigation), persons (family), property (ownership, succession), and obligations (contracts, delicts). Although criminal law is absent, the second part of the law of obligations adresses the penal nature of delicts. Every chapter is equipped with an introductory paragraph and a selective bibliography of secondary literature for further reading. The volume concludes with a list of bibliographical references (218-230) and an index locorum.

The textbook is conceptually divided into two sections : "context" and "substance", i.e. historical background (chapters 1-6) and the content of law (chapters 7-12). Chapter 1 (3-26) reviews some of the key concepts of Roman legal thought and is vital for a fuller comprehension of Roman legal culture. Chapter 2 (27-46) describes ancient Rome’s administrative and juridical control in the city of Rome and in the provinces ; here the focus is the structure of Roman jurisdiction, not the issues underlying the blending of Roman and local law. Chapters 3 (47-61) and 4 (62-77) deal with the surviving evidence of Roman law and the development of secular jurisprudence. Chapters 5 (78-87) and 6 (88-107) summarize in an accessible manner the rediscovery of Roman law from the eleventh century into the modern era. Chapter 7 (111-126) covers civil litigation, whilst Chapter 8 (127-143) considers the family and its key institutions. Chapter 9 (144-161) focuses on private property and the limited real rights operating in that context. Chapter 10 (162-179) gives an account of the rules governing the devolution of estates upon death. Chapter 11 (180-202) discusses the types of contracts, based on how they were concluded, as well as the methods by which a creditor could guard himself against the possible insolvency of his debtor. Chapter 12 (203-217) addresses civil and praetorian delicts (furtum, rapina, damnum iniuria, iniuria) along with the delicts resting purely on the ius honorarium (metus, dolus).

The textbook is structured in a pedagogically sound way. Despite its brevity, it offers a careful review of the entire field of Roman private law. Being mindful of the uninitiated, it does not presume familiarity with Latin nor does it require a working knowledge of Roman history (viii). Although many Latin technical terms are given in parenthesis, the reader is generally encouraged to think broadly about Roman law without having to engage closely with the original sources or their historical context.

Few criticisms can be offered. Given the highly technical character of Roman legal thought, simplification may not always be fruitful, for example, when the terminology of classical law does not correspond to subsequent terms or concepts, as is especially evident in the case of the law of contracts and the law of succession. The decision not to discuss, or even mention, socio-legal scholarship (viii) may have the unintended effect of turning students away from potentially productive avenues of research. The very few references to primary sources and the absence of notes cannot be overlooked, either ; this is an unconventional choice for a textbook designed to be "deeply embedded in the Romanistic tradition" (viii). The result is a descriptive narrative that admittedly reads more fluidly 1, but that also tends to neglect the ancient authors’ reasoning, the significant historical practices, and the principles of interpretation in a legal context.

In an otherwise elaborate discussion of Roman law of statutes, Professor Domingo argues rather obscurely (viii ; 9 ; 88 ; 105) in favour of the interplay between Roman law and global constitutionalism. Here is a particularly striking quote : "Roman law constitutes a perennial model for the appropriate development of legal systems for all times, as well as a foundational pillar of emerging global law. Roman law offers a good example of how a legal system can be developed and modernised based on equitable ideas and principles" (4). It is hard to see how that can be the case, and according to which criteria. First of all, Roman law is no longer viewed as a static source of doctrine, but instead as the product of a historical development and its reception by a variety of audiences of different cultural backgrounds. Second, our best surviving sources of and for Roman law largely reflect the culture-specific interests of a landed élite. Third, an important element in Roman law is the long-established mos maiorum that regulated conservative ways of legal and daily life, as Professor Domingo acknowledges himself on page 15. This means that, although there were certain sensitive cases where the praetor came to reform civil law in an innovative way (for example, with regard to succession), Romans were rather suspicious of any kind of modernisation. Finally, one must bear in mind the way in which the law actually operated in Roman society : because of the extremely complex relation between iustitia and aequitas, the Romans enjoyed neither social equity nor gender equality.

Professor Domingo’s textbook is a concise and learned synthesis whose great merit is not only that it represents an important effort in making Roman law meaningful in the present for readers everywhere, but also that it emphasizes the unifying influence of Roman law in legal history. Nevertheless, scholars, teachers and students must be careful not to overstate this influence, knowing that Roman law can and has been used as a political tool. 2


Notes:


1.   A similar style of writing has been adopted by A. M. Riggsby in Roman Law and the Legal World of the Romans (Cambridge, 2010).
2.   Mayali, L. (2015). The Legacy of Roman Law. In D. Johnston (Ed.), The Cambridge Companion to Roman Law (Cambridge Companions to the Ancient World, pp. 374-395).

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