Fall 2007

Roman Law

Syllabus, Tentative Assignments and Bibliography

 

 

 

Introduction

 

 

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In the thousand years between, roughly 500 B.C. and 500 A.D., the Romans developed the most elaborate and most comprehensive secular legal system that was known in the ancient world. This system was revived in the high middle ages and became an important (some would the most important) influence on the development of modern western legal systems. This course introduces that system: the political and social context in which it arose, the categories of private law which it applied in its “classical” period, its speculative origins in the distant past, and the mechanisms by which it developed. The course thus raises important substantive, comparative, and methodological issues, issues that are of concern to all lawyers, whether or not they happen to be interested in Rome. The specific topics for the first three-quarters of the course are relatively well fixed, but there is some flexibility at the end, depending on your interests. A short paper will be required and the final exam will be correspondingly shorter. More on this below under requirements.

 

 

 

 

 

 

 

Background

 

 

 

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This course assumes that you have had the first year of law school and nothing else. The readings are all in translation, and no prior knowledge of Latin, ancient history (etc., etc.) is required. We will ask you to learn about a hundred Latin words, because we believe that one should not speak of a foreign legal system without using the technical vocabulary of that system. Even here, there are transliterations into English. We don’t care whether you say “usufruct” (believe it or not, an English word) or usus fructus. What we don’t want you to say is “life estate” when you mean usufruct. The Roman usufruct is like a life estate, but it is also unlike, and the point of using the Roman technical term is that it reminds us of the fact that we are not dealing with the same thing.

Traditionally about half the people who take this course have some background in classical languages and/or ancient history, and about half don’t. A prior exposure changes somewhat the kind of paper that you can write, but everyone who has taken the course has found something to write about intelligently. Those who are unencumbered with prior knowledge frequently see things that those who have some prior knowledge assume away. This is a small course. Don’t be scared away.

 

Requirements

 

 

 

 

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In addition to preparation for and attendance at class, you will be required to submit a paper and take a take-home final exam. If you have kept up with the reading, the exam should not take you more than a day to complete, but it will be distributed in the last class and may be turned in at any time during the examination period. It will pose a problem to be answered in traditional law school fashion and will require a general essay. The paper should be no more than five pages exclusive of notes. It should present an idea supported by evidence from primary source material (the original or in translation as you prefer). It may deal with any of the topics covered in Parts III and IV of the course, or with a topic of your choosing. (A list of suggested topics is given below.) You should let us know your choice of topic not later than Tuesday, 16 October (earlier is better). A draft of the paper should be submitted to us no later than the day on which we cover your topic in class, or, at a maximum a day or two later. We will return the draft to you with comments and on the basis of these and of the class discussion you are to rewrite the paper, handing in the final draft to Prof. Donahue’s assistant (Ms. Reader) in HA 518 no later than 4:30 p.m. on Saturday, 22 December.  If you can’t find Ms. Reader, leave it in front of Prof. Donahue’s door (HA 512).  The take-home exam should also be turned into Ms. Reader by the same date..  You do not turn it into the registrar’s office.)

 

Office Hours


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Prof. Donahue’s office is in Hauser 512 in the Law School; Prof. Lanni’s is in Griswold 308. Prof. Donahue’s assistant is Jane Reader; she sits in Hauser 518.  Prof. Lanni’s assistant is Sandra Mays; she sits in Griswold 310.  Prof. Donahue’s office hours are from 3:15–5:15 on Mondays, or by appointment. An appointment is usually not necessary for the office hours at the beginning of the term, but it will be by the end. There is a sign-up sheet on the door. Prof. Lanni’s office hours are from 1:15–3:15 on Tuesdays. There is a sign-up sheet on the door.

 

 

Books and Materials

 

 

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In what follows: Materials = C. Donahue and A. Lanni, ed., Materials on Roman Law (unpublished ed., 2007), the first chapters of which are available at the Distribution Center; Nicholas = B. Nicholas, An Introduction to Roman Law (Oxford, 1962); Kunkel = W. Kunkel, An Introduction to Roman Legal and Constitutional History, 2d ed., J.M Kelly, trans. (Oxford, 1973); Wolff = H.J. Wolff, Roman Law: An Historical Introduction (Norman, 1951) (assignments in Kunkel and Wolff are in the alternative, i.e., you may read one or the other; you need not read both); Watson = A. Watson, Rome of the Twelve Tables (Princeton 1975). (Watson is out of print. I will make some photocopies of it when we get to it.) The Coop has Nicholas and Wolff on order. All four books are in the ILS Reference room, along with a basic collection of Roman law materials.

 

 

 

 

 

I. THE EXTERNAL HISTORY OF ROMAN LAW

 

 

Mon., 10 Sep.

Introduction; A Quick Dip into Roman Law: pimps and prostitutes.

Materials, Introduction.B (texts on pimps and prostitutes).

Tue., 11 Sep.

Chronology; Survey of Roman Constitutional History to the end of the Principate.

Materials, Introduction.A, Section 1A-C; Kunkel, 3-22, 35-63, 135-43; Wolff, 7-48; Nicholas, 1-14.

Mon., 17 Sep.

The Formulary Procedural System; the extraordinaria cognitio; the jurists.

Materials, Sections 2A1-2, 2B1–3; Wolff 91-126.

Tue., 18 Sep.

Overview of criminal procedure; The nature of Roman litigation and the Greek comparison

Materials, Sections 2B5, 2A4.

Mon., 24 Sep.

Overview of Sources of Law; Constitutional History of the Dominate.

Materials, Sections 1D–E, 2A3, 3B4; Kunkel, 23-32, 75-124; Wolff, 49-90; Nicholas, 14-37.

Tue., 25 Sep.

Imperial Constitutions; Codification; the Making of the Corpus Juris Civilis.

Materials, Sections 1E–F; Kunkel, 146-76; Wolff, 127-75; Nicholas, 38-45..

Mon., 1 Oct.

The Second Life of Roman Law.

Review Materials, Sections 1E–F; Nicholas, 45-54; Kunkel, 177-91; Wolff, 177-225.

 

II. CATEGORIES: A SURVEY OF ROMAN PRIVATE LAW

 

Tue., 2 Oct.

General Categories; Persons.

Materials, Sections 3A1–4, 3B1, 3C (this last is relevant to all the classes in this Part); Nicholas, 54–97.

Mon., 8 Oct.

Persons (cont’d).

Materials, review Materials, Sections 3A1–4, 3B1, 3C; Nicholas, 54–97.

Tue., 9 Oct.

Property.

Materials, Sections 3A5, 3B2; Nicholas, 98–157.

Mon., 15 Oct.

Succession.

Materials, Sections 3A6–8; Nicholas, 234–70.

Tue., 16 Oct.

Obligations.

Materials, Sections 3A9–10; 3B3 (contractual obligations) 3B4 (delicts); Nicholas, 158–233.

Mon., 22 Oct.

“Fly-out Week.”

Tue., 23 Oct.

“Fly-out Week.”

Mon., 29 Oct.

Obligations (cont’d), Actions.

Review Materials, Sections 2A2–3.

PAPER TOPICS MUST BE CHOSEN BY THIS DATE.

 

III. HOW DID IT ALL START?

 

 

Tue., 30 Oct.

The Twelve Tables in the Context of Early Law Collections

Materials Sections 4A1–5, 4B; Watson 1–3.

Mon., 5 Nov.

Archaic Procedure.

Read Watson 125–33; Materials, Section 4A1 (for this and every other assignment in this Topic; Tables I-III are particularly relevant here); review Materials, Sections 2A2 (Gaius 4.10–3l), 2B1, 4A4.

Tue., 6 Nov.

Archaic Family, Succession & Guardianship.

Materials, Sections 3A2–4, 2A2 (Gaius 1.108–15, 48–51, 55–57, 116–31, 136–137a, 142–200, 4.79); Watson 3–51; 166–86.  Materials, Sections 3A, 2A (Gaius 2.224, 101–04, 191–245, 4.17a, 3.154–154b, 1.141–200, 2.64); Watson 52–80.

Mon., 12 Nov.

Archaic Slavery, Patronage & Nexum. Archaic Delict.

Materials, Sections 3A, 2A (Gaius 1.124–41, 4.21–25); Watson 81–124.

 

 

IV. SOCIAL FORCES AND JURISTIC METHOD: TOWARD A THEORY OF LEGAL DEVELOPMENT

 

 

Tue., 13 Nov.

Classical Marriage and Family Property.

Materials, Section 5.

Mon., 19 Nov.

Classical Delict (the lex Aquilia).

Materials, Section 6.

Tue., 20 Nov.

Social Aspects of Classical Procedure and the actio iniuriarum.

Materials, Section 7.

Mon., 26 Nov.

Contract and Commerce:  mutuum and societas.

Materials, Section 8.

Tue., 27 Nov.

Property and Society:  servitudes and landlord/tenant.

Materials, Section 9.

Mon., 3 Dec.

General Juristic Ideas (iusticia, ius gentium, ius naturale, regulae iuris); Roman Jurists and Roman Orators.

Materials, Sections 10 and 11.

Tue., 4 Dec.

Final lecture.  Take-home exams distributed.

Mon., 10 Dec. to Sat., 22 Dec.

Take-home exam period and exam period.

Sat., 22 Dec.

Exams and papers due by 4:30 p.m. in HA 518.

 

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 Suggested Paper Topics

 

Tue., 30 Oct.

Early Law Collections. The Place of the XII in Legal History or Could One Have Predicted That the Romans Would Be Good Lawyers?

Mon., 5 Nov.

Archaic Procedure

Tue., 6 Nov.

Archaic Family, Succession & Guardianship

Mon., 12 Nov.

Archaic Slavery, Patronage, Nexum

Mon., 12 Nov.

Archaic Delict

Tue., 13 Nov.

Classical Marriage & Family Property; manus, dowry, and the “emancipation of women”.

Mon., 19 Nov.

Classical Delict (lex Aquilia)

Tue., 20 Nov.

The Unspoken Law of Persons:  (a) The Poor and the Praetor or (b) Honestiores and humiliores or (c) Iniuria

Mon., 26 Nov.

Classical Contract:  (a) Gratuitous Contract or (b) societas (Other possible topics include:  (a) sale or (b) the general notion of contract

Tue., 27 Nov.

Classical Property:  (a) Lease or (b) Servitudes

Mon., 3 Dec.

The Role of General Notions in Classical Law: iusticia, ius gentium, ius naturale, regulae iuris

Tue., 6 Nov.

Roman Jurists and Roman Orators: Was there an “oratorical” understanding of law different from that of the jurists?

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This seems to work better as a separate file. Don’t worry, you’ll be able to get back.

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 Bibliography for the XII Tables

 

G. Cornil, Ancien droit romain: Le problème des origines. Brussels, 1930.

G. Diósdi, Ownership in Ancient and Preclassical Roman Law. Budapest, 1970.

(W) E. Gjerstad, Early Rome: vol. 4.2 Synthesis of the Archaeological Evidence, vol. 5 The Written Sources, vol. 6 Historical Survey. Skrifter Utgima av Svenska Institutet i Rom, Lund, 1966–73.

M. Kaser, Das altrömische “Ius”: Studien zur Rechtsvorstellung und Rechtsgeschichte der Römer. Gottingen, 1949.

Id., Eigentum und Besitz im alteren römischen Recht. 2d ed., Cologne, 1956. [=Forschingen zum römischen Recht no. 1]

H. Lévy-Bruhl, Quelques problèmes du très ancien droit romain. Paris, 1934.

Id., Nouvelles études sur le très ancien droit romain. Paris, 1947. [=Paris, Universit‚, Institut de droit romain, Publications no 1]

P. Noailles, Du droit sacré au droit civil. Paris, 1949. [=Paris, supra, no 4]

Id., “Fas” et “Jus”: Études de droit romain. Paris, 1948.

(W) R.M. Ogilvie, A Commentary on Livy Books 1–5. Oxford, 1965.

(W) Id., Early Rome and the Etruscans. London, 1976.

C.W. Westrup, Introduction to Early Roman Law. Copenhagen, 5 vols., 1934–1954.

Id., Family Property and Patria Potestas. Copenhagen, 1936.

(W) F. Wieacker, “Die XII Tafeln in ihrem Jahrhundert,” in Fondation 0in 0in 0in'>

[We are asking you to fill in the following sheet giving me some basic information about yourself and telling me, to the extent that you can, what you would like to write about for your paper. Nothing other than your name and class is required, but the more information you can give us at this time, the easier it will be to plan the course. If you want to download this form click here.]

NAME (block capitals):

CLASS (e.g., “2L”, “LL.M.”, “2G in FAS History”, etc.):

 

HOW MUCH AND WHAT KIND OF BACKGROUND FOR THIS COURSE HAVE YOU HAD? (E.g., “College major in Ancient history”; “Two courses in Ancient literature in translation in college”; “Nothing other than 1L”.)

 

 

 

WHAT LANGUAGES OTHER THAN ENGLISH HAVE YOU HAD SOME EXPOSURE TO? (E.g., “college major in Latin”, “speak Spanish with my grandmother”, “nothing.”)

 

 

WHAT IN PARTICULAR LED YOU TO SIGN UP FOR THIS COURSE? (E.g., “I have a lot of background in the field, and I wanted to put the two halves of my life together.” “It looked interesting.” “I needed a Monday course.”)

 

 

WHAT DO YOU THINK YOU WOULD LIKE TO WRITE YOUR PAPER ABOUT? (See Suggested Paper Topics List, paying attention to the dates.)

 

 

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Please send comments to Rosemary Spang

URL: http://courses.law.harvard.edu/faculty/cdonahue/courses/rlaw/syll_rl.html
last modified: 12/14/08

Copyright © 2007. Charles Donahue, Jr.