Roman judges, case law, and principles of procedure
Ernest Metzger
Law and History Review: Vol.22:2 (2004)
Abstract
Roman law has been admired for a long time. Its admirers, in their enthusiasm, have sometimes borrowed ideas from their own time and attributed them to the Romans, thereby filling some gap or fixing some anomaly. Roman private law is a well known victim of this. Roman civil procedure has been a victim as well, and the way Roman judges are treated in the older literature provides an example. For a long time it has been accepted, and rightly so, that the decision of a Roman judge did not make law. But the related, empirical question, whether Roman judges ever relied on the decisions of other judges, has been largely ignored. The common opinion which today correctly rejects “case law” passes over “precedent” without comment. It does so because for many years an anachronistic view of the Roman judge was in fashion. This was the view that a Roman judge’s decision expressed the people’s sense of right about a specific set of facts. A decision, on this view, is simply a piece of information for an expert to examine; it has no value to another judge. With the passing of this view, however, the common opinion could accept the existence of precedent in Roman law.
Most who study Roman law today do so as historians, not lawyers. History includes doctrine, but Roman legal doctrine is rarely used to solve modern problems. There are exceptions: Roman law helps to solve modern problems. in certain jurisdictions and academic writing sometimes gives a Roman solution to a modern problem. But the time is past when Roman sources were routinely put to work in the world of affairs, and most would say codification is the main reason. It is not a cause for regret. During virtually all of its “second life” Roman law has avoided becoming a specialist subject for antiquaries. Roman lawyers of the past wanted the world’s attention and they got it: they spread Roman learning widely and profoundly. Also, codification made permanent some very good Roman ideas, even if the effect on legal science was not entirely good.
Roman judges, case law, and principles of procedure
Ernest Metzger
Law and History Review: Vol.22:2 (2004)
Abstract
Roman law has been admired for a long time. Its admirers, in their enthusiasm, have sometimes borrowed ideas from their own time and attributed them to the Romans, thereby filling some gap or fixing some anomaly. Roman private law is a well known victim of this. Roman civil procedure has been a victim as well, and the way Roman judges are treated in the older literature provides an example. For a long time it has been accepted, and rightly so, that the decision of a Roman judge did not make law. But the related, empirical question, whether Roman judges ever relied on the decisions of other judges, has been largely ignored. The common opinion which today correctly rejects “case law” passes over “precedent” without comment. It does so because for many years an anachronistic view of the Roman judge was in fashion. This was the view that a Roman judge’s decision expressed the people’s sense of right about a specific set of facts. A decision, on this view, is simply a piece of information for an expert to examine; it has no value to another judge. With the passing of this view, however, the common opinion could accept the existence of precedent in Roman law.
Most who study Roman law today do so as historians, not lawyers. History includes doctrine, but Roman legal doctrine is rarely used to solve modern problems. There are exceptions: Roman law helps to solve modern problems. in certain jurisdictions and academic writing sometimes gives a Roman solution to a modern problem. But the time is past when Roman sources were routinely put to work in the world of affairs, and most would say codification is the main reason. It is not a cause for regret. During virtually all of its “second life” Roman law has avoided becoming a specialist subject for antiquaries. Roman lawyers of the past wanted the world’s attention and they got it: they spread Roman learning widely and profoundly. Also, codification made permanent some very good Roman ideas, even if the effect on legal science was not entirely good.
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