Law Commons^™

The Dual Origin Of The Duty To Disclose In Roman Law, Barbara Abatino, Giuseppe Dari-Mattiacci

Faculty Scholarship

The Roman law remedies for failure to disclose in sales contracts were developed by two different institutions: that of the aediles, with jurisdiction on market transactions effected through auctions, and that of the praetor, with general jurisdiction including private transactions. The aedilician remedies — the actiones redhibitoria and quanti minoris — allowed for rapid transactions and inexpensive litigation but generated some allocative losses ex post, as they did not incentivize the parties to exchange information about idiosyncratic characteristics of the goods for sale. In contrast, the remedy developed by the praetor — the actio ex empto — implied …

Agency Problems And Organizational Costs In Slave-Run Business, Barbara Abatino, Giuseppe Dari-Mattiacci

Faculty Scholarship

This chapter examines the internal economic organization of the peculium servi communis — that is, of separate business assets assigned to a slave — and its (external) relationships with creditors. Literary, legal, and epigraphic evidence points predominantly to businesses of small or medium size, suggesting that there must have been some constraints to growth. We identify both agency problems arising within the business organization (governance problems) and agency problems arising between the business organization and its creditors (limited access to credit). We suggest that, although the praetorian remedies had a remarkable mitigating effect, agency problems operated as a constraint to …

A Funhouse Mirror Of Law: The Entailment In Jane Austen's Pride And Prejudice, Peter A. Appel

Scholarly Works

In this Essay, I will first outline the general development of different means used to hold property and keep it within a family in England. This discussion must of necessity be brief and schematic, and therefore readers should not rely on it as a completely accurate, nuanced, and detailed discussion of the historical development of English land law. I will then examine what Austen has to say about Longbourn, the principal property in Pride and Prejudice, which leads me to conclude that Austen probably conceived of Longbourn as being entailed and not secured under a strict settlement. I will also …

Tradition, Precedent, And Power In Roman Egypt, Ari Bryen

Studio for Law and Culture

This paper is one of a series of preliminary studies that I hope will eventually end in a book-length study of the history of law in the eastern provinces of the Roman Empire. The history of law in the provinces tends to be written in one of two ways: either as the story of how Roman rules and concepts interpenetrate local cultural and legal systems (the history of the many and varied “vulgarizations” of Roman law); or, in the wake of the “Mediterraneanist” paradigms of the twentieth century, as a story of how local communities seek to regulate themselves – …

Voices Saved From Vanishing, Vivian Grosswald Curran

Articles

Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain examines the lives of eighteen émigré lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law.

The Future Of The Economic Analysis Of Law In Latin America: A Proposal For Model Codes, Juan Javier Del Granado, M C. Mirow

Faculty Publications

Nothing excites civilian lawyers and judges more than commissions for codification. Codification is more than an academic enterprise. Codification projects directly cut across the interface between law and life. ALACDE intends to harness this Latin American interest in codification to bring the economic approach to Latin America. A new-generation law and economics civil and commercial code will be a conscious project to restate Roman law's usefulness for coping with today's problems. Through law and economics, Roman law will renew itself. As a paradigmatic private-law system, Roman law is eminently amenable to a state-of-the-art fusion with law and economics. Sensitivity to …

Christianity And The Legal Status Of Abandoned Children In The Later Roman Empire, Joshua C. Tate

Faculty Journal Articles and Book Chapters

Late Roman imperial legislation relating to abandoned or exposed children has been the subject of much debate. Some have argued that the constitutions of Constantine relating to abandoned children marked a new Christian influence, and that the years between Constantine and Justinian merely refined and explained Constantine's legislation. This paper argues that the legislation of Constantine was not distinctly Christian in content, but that some Christian influence can be seen in the rhetoric of imperial constitutions beginning in the fifth century, and that Christian ideas seem to have affected both the substance and the rhetoric of Justinian's legislation. The paper …

Codification Of Late Roman Inheritance Law: Fideicommissa And The Theodosian Code, Joshua C. Tate

Faculty Journal Articles and Book Chapters

It has long been known that most of the private law content of the Theodosian Code has not been preserved independently of the Lex Romana Visigothorum, or Breviary of Alaric. Certain constitutions, not contained in the Breviary but dating to the period covered by the Theodosian Code, have survived in the Code of Justinian. There has been debate, however, as to whether all of these constitutions were contained in the Theodosian Code.

This Article discusses this problem with respect to a particular topic: fideicommissa. The Article considers whether a particular constitution, CJ 6.37.21, might have been included in the Theodosian …

Law In Books, Law In Action And Society, Alan Watson

Colloquia

I consider myself a comparative legal historian and range widely over time and space. My interest is in private law. My general conclusions, developed over years, on law in society are three and are interconnected and are as follows: 1) Governments are not much interested in developing law especially not private law. They generally leave this to subordinate law makers to whom, however, they do not grant power to make law; 2) Even when famous legislators emerge, they are seldom interested in inserting a particular social message or even certainty into their laws; 3) Borrowing is the name of the …

Justinian's Corpus Iuris Civilis: Oddities Of Legal Development, And Human Civilisation, Alan Watson

Scholarly Works

The most momentous event in secular legal history is also perhaps the weirdest: Justinian's compilation, now known as the Corpus Iuris Civilis. Unsurprisingly, scholars have avoided stressing how odd the Corpus Iuris is. The most likely explanation is that it is so highly regarded that they have not noticed. They accept its high reputation, hence for them high quality is a given. This is a theme to which I return and no doubt will continue to return. The Corpus Iuris is so central in history, for understanding how law develops, and is so important today.

Repraesentatio In Classical Latin, Alan Watson

Scholarly Works

The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.

To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.

Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a …

Intervention In Roman Law: A Case Study In The Hazards Of Legal Scholarship, Peter A. Appel

Scholarly Works

In this Article, I offer a case study of one of the hazards presented by legal scholarship in law reviews as it has evolved over the last century. The standard law review article typically begins with an overview of the author's subject, frequently involving a historical perspective or a chronology of the development of a doctrine. This background section stems from a number of causes, but many attribute it to the fact that most law reviews are student-edited. In order to evaluate an author's argument, students need a brief course in, say, the basics of trade law and pollution control …

Book Review. Roman Law After The Fall Of Rome, David V. Snyder

Articles by Maurer Faculty

Review of: Stein, Peter, Roman Law in European History. New York: Cambridge University Press, 1999.

Fair Use In American And Continental Laws, Omar M.A. Obeidat

LLM Theses and Essays

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …

Roman Slave Law: An Anglo-American Perspective, Alan Watson

Scholarly Works

When one looks at Roman slave law from an Anglo-American perspective, what is striking is the apparent disinterest or lack of concern in the subject on the part of the state and the corresponding freedom of action allowed to slave owners. My claim is not that there was little law--indeed there was a great deal--but that the state did not get overly involved in laying down what owners could do with their slaves. For instance, though law decreed the methods by which slaves could be freed, the state imposed very few restrictions on manumission. This is all the more striking …

Ancient Law And Modern Eyes, David V. Snyder

Articles by Maurer Faculty

No abstract provided.

Thinking Property At Rome, Alan Watson

Scholarly Works

It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se …

Seventeenth-Century Jurists, Roman Law, And The Law Of Slavery, Alan Watson

Scholarly Works

Issues of slavery and slave law were of considerable theoretical interest to continental European jurists in the seventeenth century. They lived in a different world from American colonists of European descent because they had no direct experience of slave holding and no immediate financial involvement. Their interest stemmed from the fact that their education was in Roman law; and not only was Roman law the most revered system, but slaves were prominent in it. For the jurists' attitudes we must remember that, at least in theory, there were no slaves in territories such as the Dutch Republic, Germany, or France. …

Ignoring History: The Liability Of Ships' Masters, Innkeepers And Stablekeepers Under Roman Law, David S. Bogen

Faculty Scholarship

No abstract provided.

Possession: A Brief For Louisiana's Rights Of Succession To The Legacy Of Roman Law, David V. Snyder

Articles by Maurer Faculty

No abstract provided.

The Roman Law Of Trusts, William Hamilton Bryson

Law Faculty Publications

A book review on The Roman Law of Trusts by David Johnston.

Book Review. The Origins Of Medieval Jurisprudence: Pavia And Bologna, 850-1150 By Charles M. Radding, Richard M. Fraher

Articles by Maurer Faculty

No abstract provided.

The Evolution Of Law: The Roman System Of Contracts, Alan Watson

Scholarly Works

I have two aims in producing this paper. First, I wish to contribute to the general understanding of how and why law develops and explain the evolution of some very familiar legal institutions. Second, I wish to add to our knowledge of the history of Roman law, by producing a radically different view of the development of contracts, that is, I believe, both consistent with surviving textual data and plausible with regard to human behavior.

Emptio, "Taking", Alan Watson

Scholarly Works

According to Festus, "Emere, quod nunc est mer cari, antiqui acdpiebant pro sumere" and modern philologists do accept some such meaning as the original in Latin.)

The Thesaurus Linguae Latinae) however, thinks there is no certain example of this sense of emere and considers the instances adduced by Skutsch) to be scarcely convincing. I should like to produce for consideration a different instance drawn from the derivative emptio or emptor. The instance in question may not take us as far back as emere = sumere but will at least to emere = accipere.

The Rescripts Of The Emperor Probus (276-282 A.D.), Alan Watson

Scholarly Works

In an earlier study, I examined the private law in the rescripts of Carus and his two sons, the Emperors who ruled from 282 to 284, immediately before the accession of Diocletian, and found as the main conclusion that, despite everything, the quality of legal decision had remained reasonably high. This paper considers the four rescripts that survive from the troubled reign of the preceding Emperor, Probus. None contains a great legal innovation; none shows a drastic lowering of legal standards. Their importance lies in what they reveal about general matters. Despite the enormous military and economic problems of the …

Book Review. The Assize Of Novel Disseisin By Donald W. Sutherland, Morris S. Arnold

Articles by Maurer Faculty

No abstract provided.

Morality, Slavery And The Jurists In The Later Roman Republic, Alan Watson

Scholarly Works

The problem I wish to discuss is the moral attitude of the later Republican jurists to slavery. The prominent jurists of the time belong to the upper classes and, although it would be wrong to generalize from the jurists to other members of the aristocracy, we shall have a certain glimpse into the social attitudes of the period if we can gain a reasonably clear picture from the jurists. I will deal only with juristic discussion, and not with the statutes and edicts which concern slavery. No doubt the jurists would play a part in shaping these, but public political …

Towards A New Hypothesis Of The 'Legio Actio Sacramento In Rem', Alan Watson

Scholarly Works

According to Gaius, the form of the 'legis actio sacramento in rem' was as follows:

A. Hunc ego hominem ex iure quiritium meum esse aio secundum suam causam. Sicut dixi, ecce tibi vindictam imposui. (As he said this he 'festucam imponebat').

B. (Eadem dicebat e faciebat). Praetor. Mittite ambo hominem.

A. Postulo anne dicas qua ex causa vindicaveris.

B. Ius feci, sicut vindictam imposui.

A. Quando tu iniuria vindicavisti, quingenario (or 'quinquagenario') sacramento te provoco.

B. Et ego te.

A & B to the witnesses. Testes estote.

It is, I think, universally accepted first that both parties to the action …

'Apochatum Pro Uncis Duabus', Alan Watson

Scholarly Works

Two of the Transylvanian sale triptychs contain the clause 'apochatum pro uncis duabus.' The first document dates from 142 A.D., the second from 160 A.D. What meaning is to be attributed to 'apochatum (or apochatam) pro uncis duabus', literally 'receipted for two ounces'?

The real explanation, I suggest, is that 'apochatum pro uncis duabus', 'receipted for two unciae', refers to the present 'mancipatio', not to a previous one, and that the point of the clause is to limit the 'actio auctoritatis' to four 'unciae', a negligible sum.

Consensual 'Societas' Between Romans And The Introduction Of 'Formulae', Alan Watson

Scholarly Works

A very common view still held seems to be that until the second half of the second century B.C. and the passing of the 'lex Aebutia', 'formulae' were not available in actions between 'cives'. This has been very forcefully attacked, especially by Kunkel and Kaser, and the purpose of the present note is merely to add another argument to theirs.