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Obligations in Roman Law

Past, Present, and Future

Thomas McGinn

Publication Year: 2013

Long a major element of classical studies, the examination of the laws of the ancient Romans has gained momentum in recent years as interdisciplinary work in legal studies has spread. Two resulting issues have arisen, on one hand concerning Roman laws a

Published by: University of Michigan Press

Title Page, Copyright

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pp. 2-5

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pp. v-vi

This collection of essays represents the fruits of a conference held at the American Academy in Rome on March 13–14, 2008, under the title “A Conference on Roman Law: The Future of Obligations.” The conference would not have been possible without the vital support of the academy’s marvelous director, Professor Carmela Vircillo Franklin. I would also like to thank my excellent staff, especially Anne Coulson and Giulia Barra, for their indispensable help with...


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pp. vii-viii

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Chapter 1. A Conference on Roman Law: The Future of Obligations

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pp. 1-39

In recent years, the study and teaching of Roman law have undergone fundamental transformation. Many now agree that Roman law should not be isolated from the historical context in which its norms were generated; that is, they accept the need for “historicizing” Roman law rather than treating it solely as an intellectually autonomous achievement. As a field of study, it shows an ...

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Chapter 2. The Roman Conception of Contract

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pp. 40-75

For a number of years, the scholarship on Roman law has been heading toward a profound rethinking of the Roman conception of contract.
It is well known that between the end of the nineteenth and the beginning of the twentieth centuries, Alfred Pernice and Silvio Perozzi1 resisted the Pandectist approach—drawn from the theory of Natural Law, in which contracts are seen as a manifestation of the will of the parties—arriving at a total rejection...

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Chapter 3. Roman Contracts and the Construction of Fault in Their Formation

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pp. 76-101

The theme of “fault” in contract formation emerges as of the greatest importance in the context of a study of a past culture that is pitched toward the “future” of obligations. This is because, as everyone knows, it involves three fundamental questions still being strongly debated today— even in the area of what has been described as “law in action”— by scholars in numerous...

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Chapter 4. Status and Contract in Ancient Rome: With Some Thoughts on the “Future of Obligations”

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pp. 102-130

Ancient Law1 by Henry Sumner Maine was a central point of reference for the 2008 conference on Roman law at the American Academy in Rome and especially for the topic assigned to me: “Status and contract at Rome.” The book was published in 1861, a significant date for the history of legal culture, as Luigi Capogrossi Colognesi has more than once remarked.2...

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Chapter 5. Theory and Practice in the Roman Law of Contracts

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pp. 131-157

One of the many enduring qualities of Roman law in the Corpus Iuris Civilis is the level of intellectual abstraction visible in the snippets of juristic writing and imperial rescripts. This is a testament not only to the Roman legal genius but also to the efficiency of Justinian’s compilers in severing all texts from their original context. Although the lack of context, among other things, was ...

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Chapter 6. Obligations in Classical Procedure

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pp. 158-173

Roman civil procedure developed and evolved like any other body of law, with perhaps one unique difference: the pressures for reform regularly took place under the very gaze of the praetor. He was witness to the wasted time, the over-eager plaintiffs, the reluctant defendants, and the shameless airing of private affairs. He was uniquely placed to see, understand, and respond to problems. ...

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Chapter 7. Public Building Contracts in the Roman Republic

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pp. 174-188

The subject suggested to me by the host of the conference serving as the basis for this volume is of enormous dimensions, making it necessary to limit my contribution to topics already investigated by me relating to private as well as to constitutional law.1 There can be no doubt that the state intervened and interfered closely in the field of obligations, encouraging...

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Chapter 8. Roman Economic Policy and the Law of Contracts

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pp. 189-214

Population and technology established the basic constraints within which an ancient economy could develop, as is emphasized in many chapters in the recently published Cambridge Economic History of the Greco-Roman World.1 In recent years, however, scholars have recognized the potentially complex role that law and legal institutions could play in an ancient economy. The Roman law of obligations is clearly important in this connection, since it established...

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Chapter 9. Gender and the Roman Law of Obligations

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pp. 215-246

The topic of gender and the Roman law of obligations requires exploring the relationship of two normative systems: gender consists of normative constructions, and so does law. The two normative systems are closely interrelated; one reflects and influences the other. This chapter analyzes legal cases and provisions within the framework of gender constructions in ancient Rome...

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Chapter 10. An Anthropology of Fault at Rome

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pp. 247-266

An anthropological and legal analysis of individual fault and its repercussions in a given social context must, without doubt, be conducted in “contextualized” terms, that is, evaluated in relation to a specific society in a given historical moment. This method is certainly as obvious as it is indispensable. In any case, on a methodological level, it is undeniable that the conceptual categories from ...

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Chapter 11. Roman Delicts and Criminal Law: Theory and Practice

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pp. 267-295

The scholar of ancient Roman law is confronted with a radical question when addressing the topic of Roman delicts and criminal law.1 It concerns the general framework and very existence of a “Roman criminal law” as a normative system that functions (to a certain extent, independently) in order to classify and repress real- life situations considered to be socially damaging....

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Chapter 12. Roman Delicts and the Construction of Fault

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pp. 296-319

How did the Romans come to construe the notion of “fault” in the field of delict? The regime surrounding the lex Aquilia provides an excellent case study for examining this question. This essay begins by considering the construction of the notion of culpa in the juristic treatment of damnum iniuria datum (loss wrongfully given) under the lex Aquilia. I next examine intentional fault as a subjective criterion of liability both in the original conception of Aquilian loss...

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Chapter 13. The Byzantine Law of Obligations

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pp. 320-333

Byzantine law is, at heart, Roman law. The Byzantine Empire is the Roman Empire. The Byzantine emperors considered themselves the rightful successors of Augustus—indeed, of Aeneas.1 The word Byzantine is a late Western concept. So what do we mean by Byzantine law?
The crucial period is, of course, the Justinianic age, when Roman law, as we know it, went through two transformations. The first is the result of Justinian’s...

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Chapter 14. Looking Ahead to the Roman Law of Obligations: Reflections on Opportunities in Research and Pedagogy

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pp. 334-348

One common criticism of published collections of papers from conferences is that they lack a certain coherence with respect to each other. Perhaps enough has been written in chapter one.fitted to dispel that notion in this case, but let me point out a few more relevant details, because I believe that the interconnections between the papers collected in this book are among its particular strengths. ...


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pp. 349-352

Index of Sources

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pp. 353-360

Index of Persons

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pp. 361-362

Index of Subjects

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pp. 363-367

E-ISBN-13: 9780472028573
E-ISBN-10: 047202857X
Print-ISBN-13: 9780472118434
Print-ISBN-10: 0472118439

Page Count: 384
Publication Year: 2013