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V Recognition of Interests in Roman Lease Law Ix THE preceding chapter I set out the system of law by which, so I implied, urban leasehold was governed during the High Roman Empire. In three important respects, however , this implication is incorrect. First of all, we do not read our juristic sources in anything like their original form and fullness; rather, we read them mostly in a Byzantine version: highly excerpted, often compressed, and at least to some extent reworded. Admittedly , scholars have not yet arrived at a consensus in evaluating the significance of this Byzantine redaction,1 nor, in the nature of things, is a consensus likely to emerge. However, even if the substance of our sources were virtually intact (and that is improbable), the loss of the great bulk of juristic writings would still leave us with only a fragmentary idea of the content of classical law. Second, my attempt to restore a classical law of leasehold was to some extent misleading. In recent years, many scholars have turned away from the notion that classical law constituted a unified body of law; instead, they have recognized how often the jurists disagreed, and they have accepted the possibility of a "classical law" that was formed 1 Compare M. Kaser, Zwr Methodologie der Romischen Rechtsquellenforschung (1972), with A. Guarino, Sulla Credibilita della Scienza Ro?nanistica Moderna (= Atti Acad. Font. 20, 1972), on which Kaser, 102-109; and cf. F. Wieacker, SZ 91 (1974) 1-^0. !74 Recognition of Interests slowly, in tentative and uneven stages, and with considerable disagreement at every stage.2 This change in scholarly attitude raises the question of whether we may validly speak of a single Roman law of urban lease; in reality, the "system" assembled above is a composite drawn from sources varying widely in date and nature, and it would be ingenuous to suggest that the whole of this "system" was ever simultaneously in force. Third, even if these difficulties could be overcome, juristic sources still cannot be dealt with as if they described a body of positive law similar to a modern code. Roman jurisprudence operated differently. At least in the early Empire,3 and probably (as I think) throughout the classical period, Roman trials were "agonistic" in character. The iudex was not normally a law-trained judge in our sense, but rather a layman attempting to resolve as best he could arguments pro and con. The ambience of a iudicium was rhetorical: the direct confrontation of conflicting interests, the clash of advocacy and persuasion. Within this setting, juristic writings constituted one source of law among many, albeit a powerful source and probably an increasingly powerful one over time; still, the iudex retained a considerable reserve of discretion.4 These considerations suggest that we should not try to equate juristic law with the actual law administered in Roman courts. 2 Compare F. Schulz, Principles 106-108, with M. Kaser, Meth. 19-31; mainly a difference of emphasis, but with dramatic consequences for legal history. 3 Cf. D. Norr, Fs. Felgentraeger 353-366 (who may not distinguish juristic pretensions from reality, however). Not until the reign of Hadrian were iudices required to follow juristic opinions, and then only if the jurists were unanimous; where jurists disagreed, the iudex could pick and choose; cf. Gaius 1. 7, with M. Kaser, RPR2 1 211 n. 7 (literature). Granted the degree of disagreement among the jurists (above n. 2), all Hadrian probably meant was that the iudex had to judge within the general framework of Roman law. 4 On the role of discretion in undermining a system of positive law, see L. M. Friedman, The Legal System (1975) 32-39; on the iudex, W. Kunkel, Herkunft2 370, and M. Kaser, RZ 273-274. !75 Recognition of Interests These three points combine to make me a "rule-skeptic";5 the known juristic rules on urban leasehold were doubtless influential in the Roman judicial system, but are not likely to describe precisely the law applied by that system at any given time. From one point of view, however, it need not matter to a legal historian that the known rules on urban leasehold were not in fact invariably applied within the Roman judicial system; from this viewpoint, which I shall pursue below, it is sufficient that the jurists at least intended them to be applied and had some confidence in their influence on the legal system. When a conflict about substantive law arises within a judicial system, a legal...


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