Download PDF | Peter Stein - Roman Law in European History-Cambridge University Press (1999).
149 Pages
This is a short and succinct summary of the unique position of Roman law in European culture by a leading legal historian. Peter Stein’s masterly study assesses the impact of Roman law in the ancient world and its continued unifying influence throughout medieval and modern Europe. Roman Law in European History is unparalleled in range, lucidity and authority, and should prove of enormous utility for teachers and students (at all levels) of legal history, comparative law and European Studies. Award-winning on its appearance in German translation, this English rendition of a magisterial work of interpretive synthesis is an invaluable contribution to the understanding of perhaps the most important European legal tradition of all.
PETER STEIN is Emeritus Regius Professor of Civil Law in the University of Cambridge. His many publications include Regulae iris: From Juristic Rules to Legal Maxims (1966), Legal Evolution (1980) and Legal Institutions (1984).
Introduction
When we think of the legacy of classical antiquity, we think first of Greek art, Greek drama and Greek philosophy; when we turn to what we owe to Rome, what come to mind are probably Roman roads and Roman law. The Greeks speculated a great deal about the nature of law and about its place in society but the actual laws of the various Greek states were not highly developed in the sense that there was little science of law. The Romans, on the other hand, did not give much attention to the theory of law; their philosophy of law was largely borrowed from the Greeks. What interested them were the rules governing an individual’s property and what he could make another person do for him by legal proceedings.
Indeed the detailed rules of Roman law were developed by professional jurists and became highly sophisticated. The very technical superiority of its reasoning, which has made it so attractive to professional lawyers through the ages, has meant that Roman law is not readily accessible to the layman. Inevitably its merits have a less obvious appeal than art or roads. Yet over the centuries it has played an important role in the creation of the idea of a common European culture.
Most of what we know about ancient Roman law derives from a compilation of legal materials made in the sixth century ap on the orders of the Byzantine Emperor Justinian. ‘The texts that he included in this collection were the product of a thousand years of unbroken legal development, during which the law acquired certain features that permanently stamped it with a certain character. During this millennium, roughly from 500 BC to 550 AD, Rome expanded from a small city-state to a world empire. Politically it changed, first from a monarchy to a republic and then, not long before the beginning of the Christian era, to an empire. At the same time its law was adapted to cope with the changing social situation, but all the time the idea was maintained that it was in essentials the same law which had been part of the early Roman way of life.
Justinian’s texts have been viewed from different perspectives by different peoples at different periods in European history. The revival of Roman law started in Italy, which remained the focus of its study and development through the later middle ages. In the sixteenth century, with the advent of humanism, France took over the leading role. In the seventeenth century, it was the turn of the Netherlands to give a new vision to the discipline and in the nineteenth century German scholarship transformed the subject yet again. In each period different aspects were emphasised.
Roman law has had passionate adherents and fierce opponents. As H. E Jolowicz poited out in 1947, the latter based their opposition on three main grounds. First, it has been seen as a foreign system, the product of an ancient slave-holding society and alien to later social ideas. Secondly, it has been portrayed as favouring absolutist rulers and as hostile to free political institutions. Thirdly, it has been regarded as the bulwark of individualist capitalism, favouring selfishness against the public good (‘Political Implications of Roman Law’, Tulane Law Review, 22 (1947), 62). Sometimes these notions have been combined. The original programme of the Nazi party in Germany demanded that ‘Roman law, which serves the materialist world order, should be replaced by a German common law.’ That attitude provoked the great German legal historian Paul Koschaker to warn of the crisis of Roman law and to write Europa und das romische Recht, eventually published in 1947.
Fifty years later a certain crisis still affects specialist Romanists but the contribution of Roman law to European culture can be reviewed more calmly. This book does not purport to rival that of Koschaker. It attempts to give an idea of the character of ancient Roman law and to trace the way its texts have constituted a kind of legal supermarket, in which lawyers of different periods have found what they needed at the time. It has indelibly impressed its character on European legal and political thought. How that happened is our theme.
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