Artificiality, Reality and Roman Contract Law

Tijdschrift voor Rechtsgeschiedenis [Legal History Review], Vol. 57, No. 1-2 (1989), pp. 147-156


Law is very much an artificial creation in the sense that its divisions into contract or tort, property or obligation, sale and hire, and so on, are the invention of legislators, jurists or judges, rather than belonging to the nature of things. A legal institution is a social institution surrounded by legal rules and looked at from a legal point of view. But which social institutions are provided with legal rules and the nature of these rules are matters determined by the legal elite. This paper will examine the fabric from which law is made to demonstrate the artificiality of law, and the distorted mirror effect it gives to social relationships. For specificity, one branch of law, contracts, will be chosen and one system, Roman law. But, I dare to hope, this one example illuminates others.