‘Get off my lawn’

By skepticlawyer

Having put an A in the bank for my Roman law essay, and being so lazy (and weighed down with preparing for Faculty of Advocates exams) that I don’t have another blog post to hand, I thought I’d share the essay with our regulars.

As people who’ve been reading my stuff since I used to write for Catallaxy know, I’ve got an interest in how law evolves, and the application of Hayek’s insights on ‘spontaneous order’ to the orderly development of markets under law. The essay that helped win my place at Oxford applied Hayek’s reasoning to the historic evolution of the equitable jurisdiction. This paper is a comparable analysis applied to the Roman praetorian edict, which is so spookily similar to equity that there were times when I thought Lord Ellesmere, Ulpian, Chief Justice Coke and Gaius were having a lively debate en banc while F.A. Hayek moderated, perhaps with some assistance from current Mayor of London, classicist Boris Johnson, or terrific Roman-era interpreter Mary Beard.

I should point out that I took a calculated risk handing in a paper like this, and the marker’s comments (about what an interesting philosophical position I’d taken) reflected (still) the common coin of the academy. People on the free-market right, as a general rule, have to prove their first principles before discussing them. People on the anti-market left, by contrast, get their first principles taken as a given. I suspect, being in Scotland, that quoting Adam Smith helped me out a bit. I do know that time was (and not so long ago) when an essay like this would have passed and nothing more (or failed, as Legal Eagle can recount from her first year), thanks to the ‘cognitive affront‘ (to use Lorenzo’s phrase) presented by an argument that accepts commerce as a good thing. The academy is changing: the stinging criticism that the academic humanities are a sheltered workshop for the left, while the wonkish think tanks are a sheltered workshop for the right, has begun to take effect. It is high time we learned to learn from each other.

Law is a strange beast — not humanities, social science or science. It has proven stubbornly resistant to the worst excesses of postmodernism or the prolix assertiveness that these days passes for history or philosophy. Law has, however, been infected by rights talk, and rights talk makes lawyers feel important. I suspect that any intellectual field that makes the members of a given profession feel good about themselves needs to be closely watched. Rights talk is, for the most part, arrant nonsense, and puddling about in the world of private law (both equity and the praetorian edict) is an excellent prophylactic against taking either rights, or oneself, too seriously.

If you’re wondering about the Clint Eastwood quotation, it’s used because (like the English), the Romans had castle doctrine, and castle doctrine seems to be strongly linked to the cultural tendency for a given state not to interfere in private law (either the family, or commerce). It is also present because the film that made the phrase famous — Gran Torino — is a deliberate statement in favour of preferring the rule of law over private revenge, even when the latter is available and (it would seem) more apposite. Mr Kowalski (‘Dirty Harry in retirement’, as one reviewer observed) dies so that the rule of law may live.

The essay is over the fold.

[Note: the endnotes are marked clearly enough, but won’t click back and forth — you will have to scroll. I assume there is some way of making them work, but I am both impatient and technically illiterate. If it doesn’t work and there is no simple fix, I don’t bother. Technology is (may I remind its boosters) supposed to make things easier, not harder. And yes, I can still burn the pants off the twenty-year-olds and their google with a card catalogue].

Cicero informs us in his work De legibus that people used to think that the discipline of law was drawn from the Twelve Tables, but that most now think it is drawn from the Praetor’s Edict. Assess this, considering the development of the role of the Praetor and the Edict.

_________________________________________________________________________

1. Introduction

Legal systems—if they are to be fit for purpose in a complex, commercial and populous society—must evolve. Sometimes they do not, and the catastrophic consequences are available for all to see. Sometimes, however, they do, and the way that they do is fascinating both for what it reveals and what it occludes about the society in question.

The role of the praetor in developing Roman law as Roman civilization changed beyond recognition over two hundred years provides a remarkable instance of legal adaptation, what F.A. Hayek called ‘spontaneous order’, in a clear nod to biological evolution: undergoing heritable change over generations in the same trial and error fashion.[1] Fundamental to Hayek’s argument is the understanding that legal changes on this scale do not occur in a vacuum, which is why it is important to consider the development of the Praetor’s Edict over time, as well as examining it at a particular moment in time.

In this essay, I propose to do the second task first. Available evidence suggests that Cicero made his comments in De Legibus in 51 BC, when the influence of the praetorian edict was great.[ii] I will therefore assess Cicero’s claim qua claim at that time, and provide a case study. Next, I discuss how the Praetorian Edict developed up to that point, and how it broadened in scope. Finally, I offer some suggestions for the development of the praetorian edict and the praetor’s changing role more generally. My arguments on point will be drawn principally from law and economics, using evidence adduced by economists with an interest in classical antiquity.

2. The Praetor in Cicero’s time

The praetor urbanus and praetor inter peregrinos—along with other holders of praetorian office (by Sulla’s time there were eight of them)—had significant legal duties, both criminal and civil.[iii] Praetors were nonetheless still politicians, and only sometimes jurists: they ran for office and were elected for an annual term. Some of them later climbed the cursus honorum further and become consuls, but the majority did not. The praetor urbanus was the most senior of the eight praetors, and had the most legal responsibilities. However, people who ran for the praetorship did not get to choose which of the roles they preferred. When polls closed and the eight were duly elected, the individual offices (provinciae) were apportioned by lot (sortes).[iv] Once installed, the praetors’ ability to administer (and change) the law derived from a grant of imperium, a significant measure of authority originally doled out for a very different purpose, of which more later.

While their jurisdictional reach in Cicero’s time was considerable—and likely at its highest point of development[v]—the praetors did not stand alone legally. It is important to remember that Rome had other sources of law in the same period. In what follows, I outline the praetorian jurisdictional remit and the role of the edict, and then consider how it intersected with other sources of law.

(a) Praetorian criminal jurisdiction

Praetors presided over Rome’s standing criminal courts (quaestiones perpetuae) and supervised more junior criminal magistrates (iudex quaestionis) in what was a developing court hierarchy. The busiest courts were those concerned with the sort of criminal offences that occupy the attention of County, District and Sheriff Courts today: murder, rape, assault, arson and so on. These were known, respectively, as the quaestio inter sicarios et de veneficiis, (which dealt with murder and serious assaults), and the quaestio de peculatus (which dealt with lesser, non-capital offences).

Other courts dealt with public offences and offences against the state, including corruption (ambitus) and treason (maiestas). T. Corey Brennan makes a strong case for lengthy, document intensive trials in these courts, but they were at least rarer.[vi] Cicero notes that the peculatus court was the ‘grimmest’ jurisdiction a new praetor could be allocated in his sors.[vii] In 65 BC, for example, a noted jurist (and ideal potential praetor urbanus) Servius Sulpicius Rufus was in fact allocated this role, while another, less talented individual landed the coveted praetor urbanus role.[viii]

(b) Praetorian civil jurisdiction

The praetors presided over Rome’s civil courts, and were responsible for developing a body of law known as the ius honorarium. The ius honorarium did not exist in opposition to the ius civile, but—as Papinian pointed out—‘was introduced to aid, supplement and correct the civil law in the public interest.’[ix] That said, the changes the praetors wrought during the late Republic to the ius civile were as basic as any effected by statute during the same period.[x]

In Cicero’s day, only the first stage of a Roman civil proceeding took place before the praetor himself (in iure); the trial itself was delegated to a more junior magistrate (the iudex), and was called the apud iudicem. This preliminary hearing nonetheless defined the issues at stake and made clear what legal and evidentiary burdens parties bore at trial. During this hearing, the praetors could exercise their inherent jurisdiction in two broad ways. First, they could allow new remedies, the most famous of which was the interdictum. Interdicta came in many forms, and could take a prohibitory or mandatory (decreta) form. Within these two categories, there were many different types: exhiberi was an order for production (of goods or for discovery), for example, while unde vi ordered possession where the loss had been occasioned by force.[xi]

Second, they could manipulate existing procedure to permit new forms of action where the pursuer had a prima facie right to bring a claim that nonetheless did not fit within the scope of any existing writs (legis actiones). Gaius describes these new formulae as concepta verba, as opposed to certa verba, which were strict ‘forms of words’ derived from the Twelve Tables and statutes the Republican legislative assemblies had passed.[xii] This meant that claims could be stated far more accurately at trial, and allowed for the development of new causes of action. The formula often included an exceptio, which instructed the iudex to allow one of the parties a defence if a given set of facts emerged.[xiii]

Outside of his court sittings, the praetor also had the power to issue public notices (edicta), and most—if not all—were legal in nature. In the case of the praetor urbanus and perhaps also the peregrine praetor, the edicta set out in general terms the legal principles and rules that would guide their term of office.[xiv] They also set out many of the relevant formulae.[xv] All were displayed publicly. Apart from anything else, the latter two practices would allow innovation but at the same time prevent any given member of the Roman judiciary going off ‘on a frolic of his own’, making the law predictable and relatively stable, as well as open, important indicia of the rule of law.[xvi]

It is important to remember that this was an annual re-enactment, not the simple bolting on of new laws to old laws: it had, in effect, a twelve month sunset clause. Good law could thus be left in place, while formulae and interdicta that proved unworkable or inefficient could be quietly weeded out. We know, for example, that one praetor (a Cassius) removed the exceptio metus (defence of fear), reasoning that the exceptio doli (defence of fraud or malice) was sufficient to cover the field.[xvii] Later praetors sought to draw a distinction between threatened violence and bad faith and reinserted it.[xviii] Alan Watson discusses a number of other additions and emendations, some of them occurring in the early Principate.[xix]

In this context, it is worth mentioning that sunset provisions in legislation are a Roman innovation,[xx] and have useful economic consequences: laws have to work in order to survive, and much of their working efficacy depends on being known. This ensures that the body of law is kept to manageable size, without the legislative ‘bloat’ characteristic of many modern jurisdictions.[xxi]

(c) Praetorian innovation: a case study

It is difficult to convey the qualities the praetors brought to Roman law in general terms, which means that it is worth looking at a specific instance: here, the actio rei uxoriae. This praetorian formula allowed a woman to reclaim her dowry on divorce.

Early Roman marriage (cum manu) bore a strong resemblance to coverture marriage at common law, and meant the woman lost not only her property, but also her separate legal personality and her dowry.[xxii] The only right she retained was a right to end the marriage unilaterally, a contrast with the common law.[xxiii] However marriage cum manu early fell into desuetude,[xxiv] to be replaced by marriage sine manu. Here, the woman retained full contractual capacity and property rights and kept any income earned during the marriage,[xxv] in addition to the power to end it unilaterally.[xxvi] The dowry, however, remained a problem, because the husband—at least theoretically—still retained it entire. The first response was a rather unsatisfactory collateral contract to the marriage itself to make the dowry returnable on divorce (dos receptitia), enforceable using the actio ex stipulatu, a standard contractual remedy. This, however, didn’t protect women whose husbands had dissipated the property and provided no protection should the husband’s property have to be liquidated.[xxvii]

The praetorian innovation—as it evolved over time—not only allowed the woman to manage her own property if she chose (as Cicero’s wife Terentia did, to her husband’s considerable benefit),[xxviii] but if he took on management himself, he was held to an objective standard (bonus paterfamilias; the English equivalent is the ‘reasonable prudent man of business’)[xxix] and had to care for it at his own expense. Even more importantly, she was ranked above most if not all other creditors in a priority dispute.[xxx]

These property rights are equal—if not superior—to those enacted in 1882,[xxxi] but that they were introduced in response to a marriage and divorce regime that did not exist anywhere in the West until 1969[xxxii] is remarkable. Despite widespread catastrophizing about easy divorce, the positive effects reforms to private law of this type have on women are now well documented.[xxxiii]

(d) Other sources for the ius civile and ius honorarium

Peter Stein observes that ‘the Romans did not resort readily to legislation in matters of private law.’[xxxiv] Indeed, the comparative rarity of private law statutes (lex, leges) enacted by the various Republican assemblies led even great scholars like F.A. Hayek and Fritz Schulz astray: Hayek thought that it was only late in the Empire, under the influence of Hellenistic Christianity, that Justinian caught the statute virus,[xxxv] and that before Justinian’s time legislation of any type was comparatively rare. Schulz thought that it was possible to be ‘law inspired’ without being ‘statute-inspired’, and that the Romans were an instance of the former, not the latter.[xxxvi]

This is not so. As Kelly documents, Romans were positivists,[xxxvii] enacting plenty of public law and generally holding statutes in high regard, right down to Cicero’s description of Roman schoolchildren reciting bits of the Twelve Tables, much as an American child recites the Pledge of Allegiance.[xxxviii] The copious activity of Roman legislators had already led to the development of the doctrine of implied repeal, something Livy notes, and which Cicero also describes.[xxxix] It is difficult to imagine a society that passed little statute law developing a similar doctrine: there would be no need. It remains true, however, that the Roman assemblies enacted very little in the area of private law,[xl] and when Livy referred to ‘the enormous heap of laws piled on top of one another,’[xli] he must have had both leges and edicta in mind.

Any attempt to explain the Roman tendency to leave private law evolution to the courts rather than trusting to legislative bodies must be speculative, although I think that some of the answer may be found in the Twelve Tables itself: si nox furtum faxsit, si im occisit, iure caesus esto.[xlii] The provision permits a householder to kill a thief caught on his property at night, code for a ‘hot’ robbery, when family members are at home.[xliii]. Resistance on the part of the wrongdoer extended the homeowner’s killing right during daylight hours. It is instantly recognisable to any US lawyer as ‘castle doctrine’.[xliv] It has an unpleasant ring to modern English ears, although its importance in the development of civil liberty cannot be overstated. First, owners acquire general rights against persons who would move against their property; this is then extended to rights against agents of the state acting on private authority,[xlv] and finally against the state itself.[xlvi] It would seem that, like the English, the Romans developed the principle early that there was a sharp divide between the public and the private spheres, and it was improper for the public to impinge on the private sphere to any great extent.[xlvii] It meant that the great bulk of private law when Cicero wrote De Legibus had its origins in the praetor’s edict, leavened by the Twelve Tables and (a few) statutes.

3. Legal evolution: how the praetor’s role developed over time

The praetors’ imperium was not originally conferred for judicial purposes, but executive ones, particularly military. Praetors could (and did) command armies, and sometimes supervised recruiting. They also had the power to convoke the senate in the absence of the consuls (a frequent occurrence).[xlviii] It would seem that when Livy described[xlix] the role as primarily judicial, his statement was accurate for his own time, but not for 367 BC. Even in Livy’s day, echoes of the original military role can be seen in the routine appointment of former praetors (propraetores) as provincial governors, and the presence of overseas provincia among the sortes.[l]

There are two broad theories as to the how of the developing legal role. The first is that the praetor’s legal remit gradually broadened to encompass changes to substantive as well as adjectival law; the second is that Pomponius’ statement[li] that the peregrine praetorship was created expressly to dispose of matters involving foreigners is true, and that the urban praetor afterwards came to adopt the more flexible formulae his colleague used among non-citizens.[lii] The first contention seems broadly true. The second, however, is impossible to ascertain with any certainty.[liii] It may be that the peregrine praetor was something of a circuit judge whose mobility was essential simply because the urban praetor was largely confined to Rome. The fact that even the formulary system required a legal fiction to allow a non-citizen to be treated as a citizen for the purposes of litigation[liv] also suggests that the peregrine praetor was created out of geographical rather than political necessity.

Watson notes that despite Plautus’ persistent use of legal jokes, none look like something that could have emerged from the edictum.[lv] At one point, however, Terence uses the expression vi, clam, precario,[lvi] which was common in interdicts but occurs nowhere else. This suggests that interdicts developed early, but that substantive changes to the law—including the use of verba concepta—came later. It is true that most of the dateable edicta occur in the late Republic, and we usually learn of them from Cicero.[lvii] The first genuinely substantive change in the law seems to have been the edictum generale, which abrogated the scales of damages set out in the Twelve Tables.[lviii]

The use of flexible formulae only seems to have emerged as standard after the passage of the Lex Abutia de formulis, which cannot be dated with any certainty. Gaius suggests that this law and two leges passed soon afterwards abolished the old legis actiones entire,[lix] but we know that Augustus sometimes still mandated the use of legis actiones.[lx] It would appear that the two regimes existed in parallel for some time, but that the Lex Abutia allowed substantive changes in the law through verba concepta, which then appeared in the annual edictum.

4. Legal evolution: why the praetor’s role developed over time

As Hayek argues throughout Law, Legislation and Liberty, evolutionary legal change of the type evinced in the praetor’s edict and the formulary procedure does not occur in a vacuum: people do not upend a system to this extent unless it stops working, especially when one considers that law is a conservative profession and the Romans—who practised ancestor-worship—were also given to conservatism. Extra-legal reasons for the change must be sought.

The historical background to the development of the praetorian edict between 200 BC and 51 BC is well known: Rome was embroiled in numerous wars (which she won, even if battles were ceded along the way), wealth poured into Italy proper as Roman territory expanded, and there was significant population growth, despite the wars (including civil wars).

Indeed, the partial records we have of Augustus’ census in 28 BC indicate a citizen and free population in Italy of approximately 10 million (slaves were not counted, making their numbers difficult to estimate with any accuracy). This figure should be contrasted with estimates of over just over 4 million before the Second Punic War. Some scholars have doubted this growth, suggesting that Augustus must have compiled his census data differently from the censors of the Middle Republic, but that is unlikely: Augustus was very conservative, as his failed moral reforms indicate.[lxi] It is most improbable that he would tinker with something as venerated as the census. A doubling of population in 200 years may seem trivial to modern eyes, spoiled as we are by the dramatic effects of industrialisation and the ‘Green Revolution’, but it is impressive in any pre-industrial civilisation. While—like all pre-industrial societies—Roman Italy had high infant mortality rates, its position at the ‘pinnacle’ of an empire run on fairly mercantilist lines meant (a) an excellent diet, even for the poor and (b) that Italian cities were not ‘death sinks’, as they were in later periods.[lxii] If increased population is not to lead to Malthusian catastrophe, then it must be ably governed, and the economy needs to be able to grow. It is here that Hayek’s discussion of markets under law is most illuminating.

Despite the efforts of Moses Finley to argue that the Romans were not capitalists,[lxiii] the great bulk of evidence shows that the Roman economy in the late Republic and early Principate was a market economy, with all the relevant indicia one comes to expect from market economies.[lxiv]

There is copious evidence for market discipline, for example. Market discipline arises when goods and services in one part of the empire are the same or similar prices to identical goods and services in other parts of the Empire. Rome then, like London now, was more expensive, which perhaps accounted in part for Praetorian Guardsmen’s higher salaries—it was a form of ‘Rome weighting’. There is also strong evidence for growth in capital markets as well as sophisticated banking and financing arrangements (bank drafts,[lxv] charge accounts, diversification of investment risk). Cato the Elder, for instance, underwrote shipping contracts, sharing the risks with fifty other investors.[lxvi] Temin discusses evidence indicating that the corn dole (annona) in Rome was not ‘free’, but organised on a market basis. Significantly, farmers in Italy were not protected from cheaper Egyptian imports, a development that paralleled that in England during the controversy over the Corn Laws.[lxvii]

Likewise, Roman slavery—with its odd mixture of cruelty (the savage vitae necisque potestas) and kindness (the ease with which freed slaves could become citizens)—provided the sort of incentives that led to a system of free hired labour characteristic of advanced pre-industrial societies.[lxviii] While wealthy and conservative Romans like Cicero could evince disdain for wage labour,[lxix] anticipating Marx in the conflation of legal and economic relations, the evidence—from legal developments, surviving commercial contracts and other documentation—indicates that ancient Rome was an important instance of ‘capitalism without factories,’ at least by the late Republic.

Praetorian law parallels this process. There are laws evincing an understanding of limited liability (actio de peculio), separation of ownership and management (usufruct, fideicommissa) and objective standards of behaviour (bonus paterfamilias, diligentissimus paterfamilias). Equivalent concepts often only emerged at common law in the 18th and 19th centuries (‘the man on the Clapham omnibus’,[lxx] the ‘reasonable prudent man of business’). No lesser figure than Adam Smith noted the utility and commerciality of Roman inheritance law, as contrasted with primogeniture.[lxxi] Much of this law was praetorian in origin.

5. Conclusion

Cicero’s assessment in De Legibus was an accurate one for that moment in time, and also indicates an awareness of how law evolves over time. Cicero knew that people had done things differently in the past, and had then adapted to new circumstances. His respect for Servius Sulpicius Rufus may even indicate an awareness that the role of the praetor would later give way to that of the jurist: the two roles were still running in parallel in 51 BC. Praetorian innovations, however, not only provided the foundations for a developed and sophisticated system of private law, but also gave great scope for later juristic innovations, many of a commercial nature.

 


[i] Law, Legislation and Liberty, vol 1: Rules and Order (1973), 72-124.

[ii] James E.G. Zetzel, ‘Introduction’, Cicero, On the Commonwealth and On the Laws (1999), xxi.

[iii] The number varied over time but stabilised between six and eight.

[iv] Pro Murena.

[v] Alan Watson, Law Making in the Later Roman Republic (1974), 31.

[vi] T. Corey Brennan, The Praetorship in the Roman Republic vol II (2001) 456.

[vii] Pro Murena. One imagines (especially after Julius Caesar mandated all deliveries into Rome be at night in order to allow council workers to keep the city clean during the day) that quaestio de peculatus turned into Traffic Court, with endless disputes over who sideswiped whom and the disclaiming of responsibility in ensuing punch-ups.

[viii] Ad. Fam. 4.5; 12.

[ix] Papinian D.1.1.7.1.

[x] J.M Kelly (1966) ‘The Growth-Pattern of the Praetor’s Edict’, Irish Jurist, 341 at 345.

[xi] Gaius 4.139,140

[xii] Gaius 4.11; G.4.30

[xiii] See, for example D.4.6.1.

[xiv] Pomponius, D.1.2.210.

[xv] Ulpian, D.2.13.1.1.

[xvi] Joseph Raz, ‘The Rule of Law and its Virtue,’ The Authority of Law (1979), 210 at 214.

[xvii] Ulpian D.44.4.4.33.

[xviii] Ulpian D.42.8.11.

[xix] Above, n 5, 58-9.

[xx] See C.10.61.1.

[xxi] Steve Charnovitz, ‘Evaluating Sunset: What Would It Mean?’ in Contemporary Public Budgeting (1981). For a good UK example of ‘bloat’, see <http://www.parliament.uk/pagefiles/10493/LLN2010_012.pdf> visited 8 February 2011.

[xxii] Sir William Blackstone, ‘Of Husband and Wife’ Commentaries on the Laws of England (1765-1769).

[xxiii] G.1.137a

[xxiv] Susan E. Looper-Friedman, ‘The Decline of Manus-marriage in Rome’ (1987) 55 Tijdschrift voor Rechtsgeschiedenis 281-96.

[xxv] There was even the occasional female advocate or other senior professional, although all were from privileged backgrounds. See Ulpian D.31.1.5 and Appian The Civil Wars IV. 32-34.

[xxvi] D.24.2.3.

[xxvii] Ulpian, D.23.3.7.

[xxviii] Susan Treggiari, Terentia, Tullia and Publilia: The Women of Cicero’s Family (2007).

[xxix] Learoyd v Whiteley (1887) 12 AC 727, per Lindley LJ.

[xxx] See D.25.1.1.3.; D.25.1.2.; D.25.1.3. At first it seems she was ranked above unsecured creditors, but in time was ranked above secured creditors as well.

[xxxi] Married Women’s Property Act (45 & 46 Vict. c.75).

[xxxii] California Family Law Act of 1969.

[xxxiii] Betsey Stevenson and Justin Wolfers (2006), ‘Bargaining in the shadow of the law: Divorce laws and family distress.’ 121 Quarterly Journal of Economics 267-88.

[xxxiv] Regulae Iuris: From Juristic Rules to Legal Maxims (1966), 20.

[xxxv] Above n 1, 83. It is true, however, that Justinian did legislate extensively in areas of private law, particularly family law, usually to the detriment of women. N.117.14, which sanctioned domestic violence flagellis et fustibus acriter verberare uxorem, severe beating with whips and sticks, is notorious. This was coupled with the Christian horror of divorce, making escape impossible; see Theodosian Code 3.16.1.

[xxxvi] Principles of Roman Law (1936), 7.

[xxxvii] Above n 10, 341.

[xxxviii] Above n 10, 343.

[xxxix] ‘Semper antiquae obrogat nova,’ 9.34.6; see also Ad Att., 3.23.2.

[xl] Watson (above n 5) enumerates half-a-dozen statutes, including the Lex Minicia. Given that the Lex Minicia regulated access to citizenship, it should perhaps be seen as quasi-public; the Romans were greatly concerned with who was ‘in’ and who was ‘out’.

[xli] 3.34.6. Julius Caesar also expressed a desire to take a scythe to the thickets of laws he saw growing up around him: Suetonius, Divus Julius, 44.2.

[xlii] Tab. 8 (F.I.R.A., 1.57).

[xliii] See <http://www.telegraph.co.uk/comment/personal-view/3613417/An-Englishmans-home-is-his-dungeon.html> for discussion of the concept. Visited 16 February 2011.

[xliv] A good discussion of ‘castle doctrine’ and its (in this case) common law roots is available here: <http://www.njleg.state.nj.us/2008/Bills/A0500/159_I1.PDF> visited 14 Feb 2011.

[xlv] Semayne’s Case (1604) 77 Eng. Rep. 194; 5 Co. Rep. 91

[xlvi] Entick v Carrington [1765] EWHC KB J98; Amendment IV, Constitution of the United States.

[xlvii] The mocking and incredulous reaction to Augustus’ later lex Iulia de adulteriis, coupled with its signal failure (Tacitus claimed that the only people against whom it was enforced were members of the Emperor’s own family, and then more harshly than the letter of the law) is further evidence for a strong public/private distinction. See D Nörr (1981) ‘The Matrimonial Legislation of Augustus: An Early Instance of Social Engineering’ 16 IJ 350.

[xlviii] Above n 6, 135.

[xlix] 7.1.

[l] Above n 6, 125-35.

[li] D.1.2.2.27; D.1.2.2.28.

[lii] This argument is central to David Daube’s Roman Law: Linguistic, Social, and Philosophical Aspects (1969).

[liii] Brennan (above n 6) discusses various possibilities: 130-133.

[liv] G.4.37.

[lv] Above n 5, 36.

[lvi] Eunuchus 319ff; date of production was 161 BC.

[lvii] Above n 5, 32; 42.

[lviii] Watson and Kelly give different dates for this (Watson earlier, Kelly later), but both consider the activities of one Lucius Veratius (Aulus Gellius N.A. 20.1.13), who thought it would be funny to go around slapping people and then have his slave pay them 25 asses straight afterwards, this being the scheduled fine for a minor assault under the Twelve Tables. Like the stories about Elvis Presley, if it isn’t true it ought to be, and if nothing else indicates the vulnerability of fixed scales of damages to inflation.

[lix] G.4.30; G.4.11.

[lx] Under the Lex Iulia de iudiciis privatis. See further Peter Birks, ‘New Light on the Roman Legal System: the Appointment of Judges’ 47 The Cambridge Law Journal (1988), 36-60.

[lxi] N. Morley, (2001) ‘The Transformation of Italy’, JRS 91; cf W. Scheidel, ed, Debating Roman Demography (2001).

[lxii] See Professor Mary Beard’s excellent documentary on this issue, available here < http://www.bbc.co.uk/news/world-europe-11952322> visited 16 February 2011. A ‘death sink’ is where cities must constantly draw people in from the countryside in order to remain demographically stable, as urban death rates exceed birth rates.

[lxiii] The Ancient Economy (1973). Watson also disagrees with Finley on this point (above n 5, 60).

[lxiv] See, for exhaustive detail, Peter Temin, (2001) ‘A Market Economy in the Early Roman Empire’ Massachusetts Institute of Technology: Department of Economics Working paper 01-08 and (2001) ‘The Labour Supply of the Early Roman Empire’ Massachusetts Institute of Technology: Department of Economics Working paper 01-45.

[lxv] P. Tebt. 2.389. Interestingly, the bank here was owned and run by women. The loan documented was both commercial in nature, and made to another woman.

[lxvi] Plutarch, Cato the Elder, 21.5-6.

[lxvii] Keith Hopkins, (1980) ‘Taxes and Trade in the Roman Empire’ JRS; B. Sirks, Food for Rome (1991), 21. The Corn Laws were eventually repealed entire in 1846; the effects on agricultural labour appear to have been similar in both Roman Italy and 19th century England.

[lxviii] In both papers, Temin compares data from Roman Italy in this period with England and the Netherlands from the 16th-18th century.

[lxix] Cicero de Officiis 1.150-1: he equates wages with servitude.

[lxx] McQuire v Western Morning News [1903] 2 KB 100 (CA), 109 per Collins MR.

[lxxi] An Inquiry into the Nature and Causes of the Wealth of Nations (1776) III.2.3.

 

13 Comments

  1. Posted April 19, 2011 at 8:21 am | Permalink

    Hey, I’ve just handed in the above. In a jurisdiction where Conservatives are an endangered species. And got an A for it. I think I’ve done my bit 😉

    That said, after I’d come across the fourth or fifth Roman jurist crapping on about mutually beneficial exchange, or why the best sort of transactions are those that make someone better off without making anyone else worse off, or discussing hidden defects and obvious defects in the sale of goods, I decided that (Adam Smith x Margaret Thatcher) Ronald Reagan was about right. And they didn’t get sidetracked by the labour theory of value, either.

    Hayek came to the same conclusion, as did Peter Stein.

  2. Posted April 19, 2011 at 8:29 am | Permalink

    I just tried to superscript ‘Ronald Reagan’ in the above comment and failed miserably.

  3. Posted April 19, 2011 at 10:40 am | Permalink

    Rights talk is, for the most part, arrant nonsense…

    Yes, we can’t have the law evolving now can we!

  4. MikeM
    Posted April 19, 2011 at 10:55 am | Permalink

    David Friedman (a libertarian economist, like his late father Milton) has applied economic principles to law in his book, Law’s Order: An Economic Account.

    A version of the book is available online here.

    The application of economics to law was pioneered by English economist Ronald Coase, most notable with his famous essay, “The Problem of Social Cost“.

  5. Posted April 19, 2011 at 3:43 pm | Permalink

    Thanks for the plug 🙂

    It is telling that the notion of ‘liberties’ seems to have fallen by the wayside (the term used to be ‘rights and liberties’ or even ‘liberties and laws’ as in the Aragonese oath of allegiance). It is the move from a notion grounded in a particular tradition to something allegedly universal and freestanding.

    When Pope Paul III wanted to make it clear Amerindians were full moral humans entitled to full legal and moral protections, he did so without bothering with any rights talk at all.

  6. Posted April 19, 2011 at 5:38 pm | Permalink

    That Catalan oath is remarkably similar to Scotland’s Declaration of Arbroath (1320), which also limits the monarchy — there has never been an unlimited monarchy in Scotland, and the Scots clans never accepted the divine right of kings. It stated that that although the subjects of the king were bound to him ‘both by law and by his merits’, this was a form of contract the ultimate aim of which was the maintenance of the subjects’ freedom. If the king betrayed his obligations, it stated:

    we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King.

    The Scots, (interestingly) use a form of rights talk, but there is pretty compelling evidence that they were the first civilisation anywhere to use rights-talk in the modern sense.

    The original Latin in the Declaration uses ‘jus, juris’, which can be translated ‘custom’ in the same way as the Greek nomos (which Hayek uses when developing his evolutionary theory of law in LL&L). This is in contradistinction to lex, or thesei (statute law, made by man) and physei or naturam (the law of nature). The latter, of course (to a Roman jurist) meant ‘nature’ in the sense of ‘the natural environment’, and was not of divine origin (divinely inspired natural law is both an earlier and later concept; it is present in classical Greek thought, and in the Medieval Schoolmen, but does not appear in a single pagan Roman jurist). The Romans were rather fond of ‘Mother Nature, the Bloody Bitch’.

    A very nice site on the Declaration of Arbroath is available here:

    http://www.nas.gov.uk/about/090401.asp

  7. Patrick
    Posted April 20, 2011 at 11:28 am | Permalink

    LE, he may well explode, but the point is no less right for it.

  8. Posted April 20, 2011 at 4:03 pm | Permalink

    [email protected] The absolutist notion of the “divine right of kings” is post-medieval. That social order (and hierarchy) was divinely sanctioned was medieval (see the anointing in the English coronation ceremony, which dates back to Saxon times: anointing in what was partly an elective monarchy).

    But the notion that a king’s authority was contractual was a medieval commonplace: the Aragonese oath was just a particularly forthright version of it.

    In a sense it had to be, medieval kings simply did not have the fiscal, administrative or military bases for absolutism.

    There was quite a rich medieval theory of rights talk, discussed usefully here.

    Having now read your essay, enjoyed it greatly: very nicely argued,

  9. Posted April 20, 2011 at 7:08 pm | Permalink

    Dear skepticlawyer/Helen,

    Could you email me? I’m trying to delete our old group blog at sabhlokcity.blogspot.com however I can’t login. Are you still able to login and delete it using your admin status? If you want to transfer any of the old posts over to here go ahead.

  10. Posted April 21, 2011 at 2:55 am | Permalink

    This is really rather awkward — I couldn’t even begin to remember what my old password might be, let alone how to manage or delete a blogspot blog. That said, I did get an email purporting to be from blogspot re the old blog. I wasn’t sure if it were spam and didn’t know what to do with it. Was that from you?

  11. Posted April 21, 2011 at 7:31 am | Permalink

    Yep that was me. If you’re getting emails from blogspot, then that means you can recover your password and login.

    Anyway don’t worry about it if it’s too much hassle, I just thought of deleting the blog as a lot of the stuff I wrote back then I’ve changed my mind on since then. So people will think I’m crazy if they read my old stuff.

    Hope you’ve been well 🙂

  12. Posted April 21, 2011 at 9:09 pm | Permalink

    Thanks for sending that through, Sukrit, will have a bash at it when I feel capable of facing online password fiddling (never my favourite activity).

    I wouldn’t be too worried about changing your mind on stuff, though — we all do. I know I have, a lot. One of my favourite quips is from Keynes (who is not, as you would know, my favourite economist):

    ‘When the facts change, I change my mind. What do you do, sir?’

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