Obligations in Roman Law: Past, Present, and Future

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Thomas A. J. McGinn
University of Michigan Press, 2012 - History - 367 pages
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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 as intellectual achievements and historical artifacts, and on the other about how we should consequently conceptualize Roman law.

Drawn from a conference convened by the volume's editor at the American Academy in Rome addressing these concerns and others, this volume investigates in detail the Roman law of obligations—a subset of private law—together with its subordinate fields, contracts and delicts (torts). A centuries-old and highly influential discipline, Roman law has traditionally been studied in the context of law schools, rather than humanities faculties. This book opens a window on that world.

Roman law, despite intense interest in the United States and elsewhere in the English-speaking world, remains largely a continental European enterprise in terms of scholarly publications and access to such publications. This volume offers a collection of specialist essays by leading scholars Nikolaus Benke, Cosimo Cascione, Maria Floriana Cursi, Paul du Plessis, Roberto Fiori, Dennis Kehoe, Carla Masi Doria, Ernest Metzger, Federico Procchi, J. Michael Rainer, Salvo Randazzo, and Bernard Stolte, many of whom have not published before in English, as well as opening and concluding chapters by editor Thomas A. J. McGinn.

 

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Bryn Mawr Classical Review 2013.10.43 (http://bmcr.brynmawr.edu/2013/2013-10-43.html)
Thomas A. J. McGinn (ed.), Obligations in Roman Law: Past, Present, and Future. Papers and monographs of the
American Academy in Rome, 33. Ann Arbor: University of Michigan Press, 2012. Pp. viii, 367. ISBN 9780472118434. $75.00.
Reviewed by David M. Ratzan, Temple University (david.ratzan@temple.edu)
Table of Contents
“So what is to be done with Roman law?” Thus Bruce Frier in the opening of a review article at the turn of the millennium.1 The all-too-familiar crisis of “relevance” in classics and the humanities is particularly acute in Roman law: long since vanished from most American law schools, Roman law has since the 1970s been increasingly marginalized in its former redoubt, the European law curriculum.2 Frier continued:
Roman law is a hard field, requiring not only competence in the various linguistic and historical skills needed for studying classical texts, but also mastery of the elaborate analytical arts that lawyers routinely deploy. But should the chain of scholarly tradition once be broken, a real danger arises that an immense body of knowledge will soon come to seem remote and incomprehensible ... If, as I now think inevitable, Roman law has commenced its “descent into history,” in the sense that the field has lost its former legal urgency and is finally being re-absorbed into the more detached scholarly ambit of classical studies, what is still unclear is whether it can survive in more than a “vulgar,” simplified form.
The instant volume is a response to this crisis by one of Frier’s most prominent students, Thomas McGinn, who in 2008 organized a conference on “The Future of Obligations.” The purpose was to explore the “fundamental transformation” reshaping the study and teaching of Roman law adumbrated by Frier (and others), namely its historicization, but through the particular lens of obligation, which corresponds to what those of us in the common law tradition understand as contract, tort, and certain aspects of criminal law. To this end McGinn assembled an all-star cast of contributors, who have now produced a dozen studies on obligation in Roman law. The volume is indeed subtitled “past, present, and future,” but most of the essays retain an explicit interest in the future.
The book is organized thematically. Chapters 2 through 8 treat contractual obligation, moving from theoretical or doctrinal concerns to discussions of application, practice, or enforcement. Chapter 9, which considers both contract and delict, serves as a pivot to Chapters 10 through 12, which focus exclusively on delict. Chapter 13 provides a historical coda, exploring the Byzantine Nachleben of the Roman law doctrine of informal agreements (pacta). For his own part, McGinn offers an impressively wide-ranging and substantive introduction to the problems and themes discussed in the essays with connections to contemporary American law, as well as an epilogue, in which he looks to the future of research and pedagogy, particularly the case method, to which he has made a significant recent contribution. 3
In his bookends McGinn establishes an ambitious agenda: not only to reconnoiter the future of obligations in Roman law, but also to invite a wider audience to become part of that future:
This collection will ... interest not only Roman law specialists on both sides of the Atlantic but also ancient historians and students of anthropology, economic history, and gender studies ... We trust that this collection offers [nonspecialists] a sophisticated yet accessible point of entry to a discipline that has long seemed out of reach, even to those with an interest in the subject. (335)
It is important to note that here McGinn is not (or not merely) making an editor’s optimistic bid for a wide readership. Over the last decade several collections have appeared which explore the boundaries, limits, connections, etc. between Roman law and classical studies.4 They have largely tended to
 

Contents

The Future of Obligations Thomas A J McGinn
1
Chapter 2 The Roman Conception of Contract Roberto Fiori
40
Chapter 3 Roman Contracts and the Construction of Fault in Their Formation Federico Procchi
76
With Some Thoughts on the Future of Obligations Carla Masi Doria
102
Chapter 5 Theory and Practice in the Roman Law of Contracts Paul du Plessis
131
Chapter 6 Obligations in Classical Procedure Ernest Metzger
158
Chapter 7 Public Building Contracts in the Roman Republic J Michael Rainer
174
Chapter 8 Roman Economic Policy and the Law of Contracts Dennis Kehoe
189
Theory and Practice Cosimo Cascione
267
Chapter 12 Roman Delicts and the Construction of Fault Maria Floriana Cursi
296
Chapter 13 The Byzantine Law of Obligations Bernard Stolte
320
Reflections on Opportunities in Research and Pedagogy Thomas A J McGinn
334
Contributors
349
Index of Sources
353
Index of Persons
361
Index of Subjects
363

Chapter 9 Gender and the Roman Law of Obligations Nikolaus Benke
215
Chapter 10 An Anthropology of Fault at Rome Salvo Randazzo
247

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About the author (2012)

Thomas A. J. McGinn is Professor of Classics, Vanderbilt University, and past Andrew Mellon Professor at the American Academy in Rome.

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