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VI Roman Jurisprudence as an Instrument of Social Control THE CONSTRUCTION of this book is obviously intended to suggest an answer to the question: how did the jurists go about creating Roman lease law? The first three chapters are designed to show that it was based on the upper-class rental market of the capital city of Rome. There are good reasons for limiting analysis of lease law more or less exclusively to upper-class leaseholds (Chapter III); but, within this socially defined area, Roman lease law takes into account every known feature of the market, including architectural as well as social and economic features (Chapters I-II). Further, the resultant law (Chapter IV) clearly reflects an "adjustment of interests" that by no means appears to be out of tune with the realities of the Roman rental market (Chapter V). Indeed, Roman lease law, although it would scarcely be "acceptable" in any modern context, does not seem at all implausible or unreasonable within its Roman context, whether the law is treated from the viewpoint of the individuals involved or from that of social policy. My concluding chapter is intended to tie together the argument in earlier chapters and to give some suggestion of what I think this argument implies concerning the genesis, operation, and purposes of Roman lease law. The texture of Roman juristic writings differs from most modern jurisprudence. One primary difference is the ab196 Roman Jurisprudence and Social Control sence of surface urgency in the Roman sources: the absence of any clearly expressed sense that "law-jobs" cannot be put off until tomorrow, and that society stands in pressing need of new rules and new legal institutions. Instead, page after page of juristic writings is filled with a dry, rather unrhetorical prose that for the most part simply declares the law, offering no intellectually sufficient explanation or justification ; arguments are not common, and when they do appear, they seem to conceal more than they disclose about the foundation of juristic decisions.1 Under the circumstances , it is hardly surprising that some scholars have attributed to the jurists a highly intellectualized "mathematics of concepts"2 divorced from the daily life of law. We may name this characteristic of Roman jurisprudence the "illusion of timelessness."3 One consequence of the extreme, almost stylized flatness affected by the jurists is that we often do not find it easy to 1 On this controversial matter, I agree completely with F. Wieacker, in Fs. Kaser (1976) 3-27, who cites much recent bibliography. Wieacker observes (p. 4) that the postclassical tendency to strike out legal reasoning probably should not affect our judgment of the overall character of their argument. On the general failure of the jurists to seek and obtain ethical grounding for their decisions, cf. T. Parsons, Societies (1966) 27, 89. This failure is (or ought to be) evident to any scholar of comparative law. 2 This famous idea is ascribed to Savigny; on the problems it entails for its (few) modern defenders, see F. Horak, in Fs. Kaser (1976) 29-55. The impression of timelessness is also promoted by the jurists' free mixing of "real" and "hypothetical" cases, and by their easy movement from one theme or case-group to another. 3 By which is also meant, that when certain clearly temporal elements in Roman law have been ignored (e.g. the existence of slavery, and the absence of capitalism), what remains can be held to constitute the jurists' contribution to a "timeless" fund of legal ideas. Some such notion lies at the basis of an approach to Roman law through Natural Law, an approach which even today has its persuasive advocates; e.g. W. Waldstein, in ANRW 11.15 (1976) 3-100, esp. 98-100, on whom see F. Wieacker, SZ 94 (1977) 320-324. By contrast, N. Luhmann, Rechtssystem und Rechtsdogmatik (1974) 49-54, rightly changes the focus to "gesellschaftsadaquate Rechtsbegriffe ." 197 Roman Jurisprudence and Social Control state with authority the factors impelling a jurist to any particular decision. 4 Within the limits of an historical dis­ cussion, it is possible to describe with certainty only the (partially self-imposed) parameters delimiting the jurists' freedom of decision. In Roman lease law the major parame­ ters are two: First, there can be little doubt (although we lack absolute proof) that the structure and preexisting social institutions or practices of the rental market were in the main adopted by the jurists as the basis and framework for the legal in­ stitutions...


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