Учебный год 22-23 / Watson - The Evolution of Western Private Law

Greek influence may have come from Magna Graecia, in southern Italy.) When the delegation returned, it was decided to appoint ten officials, decemviri, as the sole magistrates, to draft the laws. After controversy over whether plebeians could be appointed to the office, the plebeians conceded that only patricians would be decemviri. The sources stress that the plebeians wanted the powers of the consuls to be limited and set down, and that they sought equality before the law.

These decemviri produced a code of ten tables which, after amendment, were successfully presented to the comitia centuriata. The decemviri proved to be very popular and, when it was felt that the code was incomplete, a second group of decemviri was elected for the following year. They produced two supplementary tables, and the resulting Twelve Tables became the basis of Roman law. Members of the second set, especially Appius Claudius, showed themselves to be tyrannous, remained in office after their term expired, but were eventually deposed.

The plebeians had demanded equality before the law. The Twelve Tables is remarkably egalitarian, but only because the patrician decemviri restricted its contents to the law they were willing to share with plebeians. Hence, there is no public law, no treatment of state public or religious offices.9 This check created the distinction between public and private law that is so much a feature of modern law, especially in civillaw systems.

Statute requires interpretation. According to the jurist Pomponius (D. . . ‒ ), writing in the second century A.D., the task of interpretation, specifically of the Twelve Tables, was allotted to the patrician College of Pontiffs, which each year selected one member for interpreting private law. Ever afterward the subsequent Roman jurists concentrated on private law.

Such were the historical events that, above all, in my view, determined the spirit of Roman law. The major characteristics that shaped Roman law forever flowed from these circumstances.

Just as none of us make our history just as we like but carry our past with us, so the interpreters of the Twelve Tables carried over from their pontifical roles their sacred-law approaches to legal reasoning. Accordingly, legal judgments could not be reached expressly on the basis of what was reasonable, economically advantageous, useful, or just. As we shall see, a very particular form of internal legal logic was employed in reaching an opinion, with few references to social reality, which also explains the at least apparent remoteness from legal discussion of particular political, social, or economic circumstances or events.

The original role of interpretation given to the pontiffs and the choice of one of their number to give authoritative rulings are the basis of two other characteristic features of the system at Rome: the importance subsequently attached by gentlemen (i.e., the jurists) to the giving of legal opinions, and the acceptance by the state of the individual’s important role in law making. Because becoming one of the (originally) four pontiffs was an important step in a political career and because giving authoritative rulings in law was a significant pontifical function, it was valuable for a gentleman to have legal knowledge and to provide legal opinions. Because the pontiffs were patricians and were appointed only after they had a known political track record, the ruling elite could usually feel confident in allowing them to declare what the law was. When the College of Pontiffs lost its monopoly of interpretation, tradition ensured that men of the same class regarded the task as important. Until the early first century B.C., the senators dominated the ranks of the jurists; and up to B.C. eighteen jurists had held the consulate.10

The same facts explain fundamental approaches to legal sources. The role of interpretation given to the pontiffs entailed, as we will see, little scope for custom and judicial precedent in law making. That role and the high social status of the pontiffs, and subsequently of the jurists, ensured that there would be close cooperation between jurist and praetor and meant that once praetors began to create law by setting out in edicts how they perceived their legal functions, much of the detail could be left unstated, to be filled in by the jurists.

On the same basis, too, is to be explained the absence of concern with the realities of court practice. The jurists as such were not directly involved with litigation. Their prestige (and wealth) did not depend on the outcome of a trial, and they were not concerned with strategies for winning. Thus arose the extreme separation of substantive law from the technicalities needed to support it. Formalities, for instance, were required to create the contract of stipulatio, but they were of such a nature that they provided no evidence for a court that a contract had actually been made.

One text from the great Julian of the second century is sufficient to show the general style of Roman juristic reasoning.

D. . . . A slave who had been wounded so gravely that he was certain to die of the injury was appointed someone’s heir and was subsequently killed by a further blow from another assailant. The question is whether an action under the lex Aquilia lies against both assailants for killing him. The

answer was given as follows: A person is generally said to have killed if he furnished a cause of death in any way whatever, but so far as the lex Aquilia is concerned, there will be liability only if the death resulted from some application of force, done as it were by one’s own hand, for the law depends on the interpretation of the words caedere and caedes. Furthermore, it is not only those who wound so as to deprive at once of life who will be liable for a killing in accordance with the lex but also those who inflict an injury that is certain to prove fatal. Accordingly, if someone wounds a slave mortally and then after a while someone else inflicts a further injury, as a result of which he dies sooner than would otherwise have been the case, it is clear that both assailants are liable for killing. . This rule has the authority of the ancient jurists, who decided that, if a slave were injured by several persons but it was not clear which blow actually killed him, they would all be liable under the lex Aquilia. . But in the case that we are considering, the dead slave will not be valued in the same way in assessing the penalty to be paid for each wound. The person who struck him first will have to pay the highest value of the slave in the preceding year, counting back three hundred and sixty-five days from the day of the wounding: but the second assailant will be liable to pay the highest price that the slave would have fetched had he been sold during the year before he departed this life, and, of course, in this figure the value of the inheritance will be included. Therefore, for the killing of this slave, one assailant will pay more and the other less, but this is not to be wondered at because each is deemed to have killed him in different circumstances and at a different time. But in case anyone might think that we have reached an absurd conclusion, let him ponder carefully how much more absurd it would be to hold that neither should be liable under the lex Aquilia or that one should be held to blame rather than the other. Misdeeds should not escape unpunished, and it is not easy to decide if one is more blameworthy than the other. Indeed, it can be proved by innumerable examples that the civil law has accepted things for the general good that do not accord with pure logic. Let us content ourselves for the time being with just one instance: When several people, with intent to steal, carry off a beam which no single one of them could have carried alone, they are all liable to an action for theft, although by subtle reasoning one could make the point that no single one of them could be liable because in literal truth he could not have moved it unaided.

The issue arose under the lex Aquilia, which dealt with damage to property. Under chapter , for the wrongful killing of a slave, damages were the highest value the slave had in the past year. Under chapter , for the wrongful wounding of a slave, damages were the amount of loss to the owner.11 A slave was wrongfully wounded so severely that he was sure to die. Then another person died, who had appointed the slave his heir

in his will. Then someone else wrongfully killed the slave. The basic issue in the text is whether the first injurer is liable under the first or under the third chapter. Julian first reasons from the meaning of the verb, caedere, “to strike,” and the noun caedes, “killing.” He says in general a person is held to have killed if he furnished a cause of death in any way, but for liability under the lex Aquilia there are restrictions: there had to be an application of force, and this force had to be by the body to the body. This he claims to be the result of interpretation.12 There is something strange in this because, so far as we know, neither caedere nor caedes appeared in the statute: the verb occidere, “to kill,” did. And this should have allowed the wider interpretation. Perhaps some part of the statute has been lost. In any event, this restriction had been accepted by Julian’s time. It meant in practice that for “furnishing a cause of death,” the wrongdoer would not be liable under chapter , but to an action on the facts for which the damages would only be the owner’s loss.13 Presumably this distinction was first drawn by jurists and then accepted to restrict the possibility of windfall profits to the slave’s owner. If this view is accurate, then the jurists were motivated by social concerns. But then we have an insight into their reasoning. Societal concerns of such a kind are not voiced in the discussions of the statute. They would be an inappropriate argument. Instead, the argument is from strict verbal interpretation. Julian deals with the point, but it does not really matter to him. He decides that both killed: the first because the blow was mortal, the second because the slave died sooner.

In fragment Julian produces a different argument for developing his thesis. He cites, as is typical of jurists, the authority of earlier jurists. Where several struck a slave who died, and it could not be established who struck the fatal blow, all would be liable for killing. That is, each would pay the slave’s owner the highest value the slave had in the past year. The owner would receive considerable windfall profit. Neither Julian nor any other jurist discussed the justice of the result nor, so far as our evidence goes, did any suggest reforming the statute. Justice or fairness seldom appears as an argument to reach a decision;14 and law reform was not high on the jurists’ agenda.15 Significantly, when the lex Aquilia was received later in western Europe, this measure of damages was not accepted.16

In fragment Julian relates that the penalty will not be the same in each case. The first wounder, or killer, will pay the highest value the slave had in the year prior to the wounding, the second will pay the highest price he would have fetched in the year prior to his death. The second,

that is, but not the first, will have to pay the enhancement of the slave’s price because of the inheritance. Julian is clearly aware that his decision will not satisfy everyone so he uses a standard juristic argument, the reductio ad absurdum:17 it would be much more absurd to hold that neither should be liable or one more liable. But, of course, in this case by deciding the date of death differently, he has made the second wrongdoer more liable than the first. He had two other options. He could have held that both were liable for killing at the moment of death. This ruling would have been more rational, but then the owner would have received the windfall profit of the double inheritance, and Julian apparently wants to avoid that. Alternatively, he could have held the first assailant liable only for wounding. But then Julian would have had another problem. The first assailant would get off almost scot-free. Not only would he not have to pay for the inheritance but, because he only had to pay for the owner’s loss, he would not have to pay on the slave’s value for what the owner recovered from the second assailant. And the second assailant’s wounding might have been slighter.

Although jurists usually avoided expressing social arguments, we have an exception here: “Misdeeds should not escape unpunished.” We should note the context. Actions on the lex Aquilia were actions of private law but what they concern here would be a serious crime at Rome and elsewhere.

Julian, having great difficulty with his argument, continued to try to justify it: innumerable examples prove that the civil law has accepted things for the common good (pro utilitate communi recepta) that do not accord with pure logic. He indirectly admits that his solution lacks logic. Very seldom do the Roman jurists use utility as a reason toward a decision. When utilitas appears as an argument, it is almost always as an argument, as here, to justify past decisions. And what is accepted on the ground of utility is almost always an exception.18

Finally, Julian gives us one of these examples. But it is a simpler case. The Roman delict of theft, furtum, was committed by a wrongful touching, and did not require asportation. But if someone wrongfully handles something that he is incapable of carrying off, there is no furtum. Yet if two or more carried off, each of them is a thief. The only troubling issue is that the actio furti lay against a thief for a multiple of the value of the thing, not for the owner’s loss. The text is instructive not only for what it says but for what it does not say: no direct allusion to societal issues. Julian’s decision is illogical (and has often been held interpolated),

and the correct solution had been given by Celsus, as reported by Ulpian:

D. . . . . Celsus writes that if one man gave a slave a mortal wound, and another afterward deprives him of life, the former is not liable as if he had killed but as if he had wounded because he perished from another wound: the latter is liable because he killed. This is also the view of Marcellus, and it is the better view.

Julian’s difficulty is made even clearer by another text of Ulpian.

D. . . . . If a slave who has been mortally wounded has his death accelerated subsequently by the collapse of a house or by shipwreck or by some other sort of blow, no action can be brought for killing, but only as if he were wounded; but if he dies from a wound after he has been freed or alienated, Julian says an action can be brought for killing. These situations are so different for this reason: because the truth is that in the latter case he was killed by you when you were wounding him, which only became apparent later by his death; but in the former case the collapse of the house did not allow it to emerge whether or not he was killed.

The distinction drawn by Ulpian may be dubious. But what interests us in the present context is precisely that no social or economic argument is adduced. That was not the way of the jurists.

The compilation of Justinian described in Chapter , with the apparent exception of the Institutes, was lost to view in the West from shortly after Justinian’s time to about the eleventh century. Thereafter, the study of it, and its Reception, are among the glories of the Middle Ages. Legislation, as often, was scarce, and governments left law to be made by subordinate lawmakers, again jurists but now mainly university professors, who were not appointed to make law and were not given power to do so. But make it they did by forms of reasoning approved of by their fellows and not objected to by governments.

Law created this way needs to be based on legal authority, and the professors found it in the great respect they attributed to Roman law and canon law. In many instances Roman legal rules or institutions could be taken over more or less without alteration, with the professors citing the Corpus Juris texts as authority. But even if law was needed for new social situations, Roman law could still be used. The professor might argue that a branch of Roman law, by analogy, supplied the law

for the new situation. A striking example of this approach is a book that was published under a variety of titles, such as Loci argumentorum legales and Topicorum seu de locis legalibus liber, and first appeared at Louvain in . It was the work of Nicholas Everardi (Everts), who was born in Zeeland in and died in . He studied at Louvain University, graduating as doctor of civil law and canon law in . He became professor of law there and later, in , rector magnificus. In he was appointed “official,” or ecclesiastical judge, representing the bishop of Cambrai, at Brussels, and from to he was president of the Court of Holland. In the latter year he became president of the Supreme Court of Holland, Zeeland, and Friesland at Mechelen. A professional of this type, a combination of professor and judge, of public servant and ecclesiastical officer, is not unusual for the period.

The Loci argumentorum legales is an innovation in legal literature in that, although interest in legal argument was not new, the author for the first time sets out fully and systematically the various kinds of argument that can be used in legal matters.19 Of concern here are not the general loci (points for discussion) on drawing arguments from etymology, from the genus to the species, and from the whole to the part, but quite a number of loci, all based on argument by analogy and all dealing with individual legal subjects, whose arguments are drawn from Roman law to non-Roman law: thus, from slave to monk (locus ); from freedman to vassal (locus ); from miles armatae militiae (soldier of armed warfare) to miles caelestis militiae (soldier of heavenly warfare)—that is, from the rights and duties of a Roman soldier to those of a Christian cleric, priest, or bishop (locus ); from soldier to church or pia causa (locus ); from liberty (basically, presumption or interpretation in favor of liberty) to pia causa (locus ); from fisc to church or pia causa (locus ); and from minors to church or pia causa (locus ). Locus , though entitled “from feu to emphyteusis” (Roman long lease of imperial land or of private land for a rent in kind), also deals with arguments from either one to the other.

In all of these the non-Roman element is in effect being delineated in terms of the Roman law. Roman law is regarded as providing a good analogy, and because it is fuller and more developed, gaps or presumed gaps in the other law can be filled. In the process, the non-Roman area of law receives rules of Roman law, and to some extent, the non-Roman element is seen in Roman law terms. More significantly, the system of Roman law is being extended to incorporate the later non-Roman elements. Roman law is being treated as living and developing law. It is ap-

side the territory? To which I say, that sometimes either the delinquent or he against whom the crime is committed outside the territory is a foreigner; then the rule is that the statute, though it expressly forbids the act, does not extend to those persons who are outside the territory, etc. [D. . . ;. . ], because the statutes are the peculiar law of the city.

The proposition he is expounding would be widely accepted, and to this point he has based himself on two Digest texts. The first, D. . . , runs:

One who administers justice beyond the limits of his territory may be disobeyed with impunity. The same applies where he purports to administer justice in a case exceeding the amount established for his jurisdiction.

The text is sensibly used by Bartolus, but it had no connection with conflict of laws. Its point is that an appointed magistrate has no jurisdiction to decide cases outside of his jurisdiction or for an amount higher than the financial limit set on his jurisdiction. It certainly did not mean that if a state enacted a statute that some act was criminal, then it could not hear a case within the state for the act committed outside of the state where either the wrongdoer or the victim was a foreigner. The other, D. . . , is even less to the point:

All peoples who are governed under laws and customs observe in part their own special law and in part a law common to all men. Now that law which each nation has set up as a law unto itself is special to that particular civil society [civitas] and is called jus civile, civil law, as being that which is proper to the particular civitas. By contrast, that law which natural reason has established among all human beings is among all observed in equal measure and is called jus gentium, as being the law which all nations observe.

The jurist, Gaius, was making the point that in any state part of its law will be peculiar to that state, part of it will be found everywhere. He was considering these characteristics of law within one state and was not pronouncing on the impact of a state’s legislation—in fact, legislation is not his specific concern—on behavior elsewhere. Again, the original text had no connection with conflicts of law.

In no sense am I criticizing Bartolus. He was not attempting to explain Roman law. Rather, he was dealing with the very practical problem that in fourteenth-century Italy there were many city-states with legal rules that often did not correspond. When a dispute arose between inhabitants of different states the issue of which law applied was of major importance.23

In the absence of legislation the approach was both useful and fruitful. Still, its artificiality did not escape the notice of learned nonjurists. François Rabelais (c. ‒ ) uses it to great comic effect. In chapterof Le Tiers Livre Judge Bridoie defends his behavior in deciding lawsuits on the basis of his age and poor sight. He cast dice on the outcome but he admits it could have been the case that he mistook a five for a four or a three for a two. He insists that by the provision of the law imperfection of nature must not be imputed as a crime as appears from: “ff. de re milit. l. qui cum uno, ff. de reg. jur. l. fere ff. de edil. ed. per totum, ff. de term. mo. l. Divus Adrianus resolu. per Lud. Ro. in l. si vero, ff. solu. marti.” Very learned it seems, but not very funny until we check his authorities. The first two are enough. The modern citation of the first is D. . . .pr.: “A man born with one testicle or who lost one, may lawfully serve as a soldier according to the rescript of the defied Trajan: for even the generals Sulla and Cotta are regarded as having been in that condition by nature.” The other text is D. . . : “In almost all penal cases, relief is given for age and ignorance.” Neither of these texts would have availed Bridoie much in a real lawsuit. But Rabelais’s fun consists in using Roman legal texts in precisely the way later jurists did to argue cases or make new law. The humanist jurists, like Cuiacius, who wished to reconstruct Roman law approached the texts in a very different way. They expressed their contempt for this older method—but still used—of the glossators and commentators. So did Rabelais himself.24

Still, despite the contempt of the humanists, the main way jurists could develop the law was precisely that of those who deliberately misrepresented the sense of the Roman texts. This was true not only for Italy and France but also for continental western Europe right up to codification. Let us return to conflict of laws. Many scholars proposed theories but none is so interesting for Britons and Americans than those of the Dutchman, Ulrich Huber ( ‒ ), whose theory on the subject was accepted in Scotland, England, and the United States alike. His simple scheme was founded on three axioms.25 Axiom is a mathematical term for a self-evident proposition, which accordingly needs no proof. Axiom : “The laws of each sovereign authority have force within the boundaries of the state, and bind all subject to it, but not beyond.” For authority he cites D. . . , which I have already discussed. Axiom: “Those people are held to be subject to a sovereign authority who are found within its boundaries, whether they are there permanently or temporarily.” The authority he gives is D. . . . , which by only