In lieu of an abstract, here is a brief excerpt of the content:

196 Introduction Roman Law and Western Humanism The Greeks invented the city, a community under the rule of law—the same law for all, created by men, debated rationally in the agora, making possible personal liberty. While they created the form of the law, the Greeks did not progress very far in the development of its content. It fell to the Romans to take this decisive step and to activate the potentiality of personal liberty contained in the idea of the law. The law functions as a guide to enable one to know what and what not to do in order to eliminate violence and arbitrariness from social relations. The law performs this function best when exact limits are set on the scope of the legitimate action of each individual. This ring-fencing of mine and yours, the proper domain of each individual person, is what the Roman jurists achieved. Roman jurists succeeded in this endeavor over the centuries—as military conquests transformed Rome into a colossal cosmopolitan state presiding over vast territories and diverse ethnic peoples—by inventing and perfecting legal concepts and increasingly abstract and universal legal tools, void of ethnic or religious particularisms. This includes notions of (1) the law of persons: minority, invalidity, trusteeship, legal guardianship, family, marriage, inheritance, adoption, legitimization , the notion of a legal (moral) person; (2) the law of things: ownership, possession, servitude, material and immaterial things, movable and immovable properties, prescription, bare ownership, usufructuary rights, co-ownership, joint possession, rent; and (3) the law of obligations : contract law, bailment, pledge, mortgage, guarantee, mandate, company, purchase, sale, synallagmatic pact, misrepresentation, fraud, testament, bequest, and trust, to name a few. While the Greeks had a sense of mine and yours (Cicero reminds us that the definition of justice in Roman law—ius suum cuique tribuere, “give each man his due”—is Greek in origin) (see also Plato, Republic 331e), the Romans were the first to invent the legal apparatus for keeping close track of everything that is “mine” after I marry, have children, go into partnership, contract a debt, mortgage my belongings, after my children inherit from me, divorce, have children of their own (even illegitimate offspring, recognized or not), have their property seized, then restituted by court decision, and so on and so forth. It was Roman law that made possible the Introduction: Roman Law and Western Humanism 197 regularity and security of transactions and transformations that determine the future of each person’s property. These legal inventions have profound metaphysical implications despite their almost prosaic appearance. While the definition of the proper domain of each person is fixed and guaranteed over several generations, it is the self that acquires a dimension never before attained by all preceding civilizations. For the first time ever, the self is projected forward into the future: the self is no longer the being of a day, as short-lived as a blossom or a breath. It is part of something long term. This new time frame enables the self to make rational plans because it can anticipate the successive forms its properties will take; because the self alone knows what it will decide, as it exercises its own free will. In so doing, the self becomes totally irreducible to any another because, as its life unfolds through transactions and the successive forms of its property, which are also the forms of its personal experience, an absolutely singular path is plotted, which cannot be superimposed on the paths traced by other human lives and liberties. Individuals no longer melt into an anonymous throng, both in the sense of a complete fusion with the tribal group and in the sense of the tight solidarity that prevailed in the Greek city. For the first time in history, and thanks to the law, what we moderns know as private life becomes a possibility; a sphere of personal liberty, legally inviolate by others, becomes reality. In this sense, it can be argued that the Romans invented the idea of Man as we in the West understand it, that is, a free, individual human person, having an inner life and an absolutely original destiny, which is irreducible to another; a person who can enforce his or her rights against others as well as against collective organization itself. All subsequent Western political forms, except in the high Middle Ages, will be conceived and developed on the basis of this Roman conception of Man. No political regime will be accepted on a permanent basis in...

Share