Society And Legal Change 2Nd Ed

Chapter 10: Causes of Divergence

Chapter 10 CAUSES OF DIVERGENCE It will have already become apparent from the preceding chaptersifit was not apparent before - that for radical law reform something like legislation is usually needed. (For Rome I am here including within the term 'legislation', magistrates' Edicts which were so important in the Republic and Imperial constitutions.) It will also have become apparent that often legislation is not forthcoming, at least for centuries. The basic reason for this is quite simply that the body or individual which has control over legislation on private law often has insufficient time or interest for law reform since it is usually charged with other functions especially of a political nature. This would apply to the Roman magistrates, the concilium plebis, the senate and the Emperors, as well as to the English King (in earlier days) and now to the Sovereign in Parliament, and to European legislative bodies. Indeed, the members of any legislature frequently have no particular legal qualifications or expertise. And often their interest in most aspects of private law is very limited. It is very illuminating that when the revised draft of what became the German Biirgerliches Gesetzbuch was laid before the Reichstag in June, 1896, fully one-third of the 125 speeches on it concerned rights and liabilities relating to game and domestic animals.l All in all, only one important change was made in the draft, that which reduced from twenty-five years to twenty-one the age up to which parental consent was need for marriage. Circumstances are, of course, not always everywhere the same. A strong Emperor or King such as Augustus or Louis XIV who in general did not have to spend too much time on public debate, and who was interested in private law, could very quickly - at little cost in time to his other duties - make a legal reform which was obviously needed. Other factors, too, often make legislation haphazard. To begin with, the very fact that persons or bodies in charge of legislation very often have a political function will diminish their role in reforming private law. If by pressing for a reform which is generally recognised as desirable, they could alienate even a small number of their supporters, they may prefer to stay aloof. Thus, Copyrighted Material 116 Society and Legal Change for Rome between 200 B.C. and the end of the Republic - the most fertile period of legal development the world has known - there was no legal innovation in the relationship between a paterfamilias and his dependants, no change by statute or edict on marriage or divorce. Yet immediately thereafter Augustus was responsible for extensive reforms. Republican politicians, concerned for their future, stayed away from reform in a sensitive area. Augustus had no need to.2 In contemporary Britain the Government has been very reluctant to involve itself in the reform of the law of divorce even when it could be shown that only a minority opposed a change in the law. The Divorce Reform Act 1969 (chapter 55) had to be by a private member's bill.3 Again, as we have already seen, legislation drastically affecting the development of private law may be introduced for reasons, even the most personal reasons, affecting the ruling elite at that time, without any concern being shown for the state of the law in general or for other interests. Thus, the decree of the Roman senate permitting marriage with a brother's daughter was the work of senators who wished to please the Emperor Claudius. They had no concern with the general question of marriage reform, and if Agrippina had been Claudius' sister's daughter, the decree would certainly have permitted marriage with that kind of niece and retained as invalid marriage with a brother's daughter.4 Again, Henry VIII's Statute of Uses was passed to increase his revenues with no concern either for the general development of land law or for the legitimate interests of landholders which might have been preserved while the King was increasing his revenues.s The same may be said of Constantine's statute of A.D. 337 on sale, probably but not certainly only of land. The main purpose of this was to ensure that taxes on land were paid, and the Emperor was indifferent to the legal structure of the contract of sale. Yet inter alia, the statute enacted that when the contract between the buyer and seller was formally executed, the seller's certain and true ownership had...