Israel Law Review, Vol. 7, No. 1 (January 1972), pp. 14-24. Original copyright is with the Israel Law Review.

Abstract

It is a commonplace that Rome's greatest contribution to the modern world is its law.

Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res mullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no 'practical' value. Thirdly, following upon these but worse still, the usefulness of roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in "the Age of Reason" were ready to regard Roman law as "the Law of Reason."

Thus, Roman law is divorced from its context. Of course, in its natural setting it was not like that at all: it was not perfect, unchangeable or abstract reasoning. Bad rules, weak reasons, illogical arguments abound. Let me cite here only one extreme instance of a bad reason. The jurists Labeo and Paul agree that a slave who lacks a tooth and is sold without the defect being disclosed cannot be returned to the seller as morbosus under the Aedilician Edict. They both give as a reason that many people lack teeth, that babies are born without teeth and yet they are not regarded as minus sani until teeth appear. But as W.W. Buckland pointed out long ago, the argument is absurd for it is equally true that babies are unable to walk.

But I do not want to discuss here weakness of reasoning by individuals. Rather I want to look at satisfactory legal developments acceptable to all or nearly all jurists where logic or strict reasoning is set to one side,where the jurists show that thy are not philosophers of an eternal pure reason but hard-headed lawyers dealing with actual situations in a real world where the result is of greater importance than the way it is obtained.

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