Law Out of Context

Abstract

Law is out of context much of the time, even perhaps most of the time. A society makes law: the society changes, politically or economically, hut the law remains the same or little changed. Often this has astonishing consequences. This paper takes a number of striking examples that have been generally unremarked or underemphasised to indicate some of the dimensions of the problem of the relationship between law and society. Justinian's Digest and Institutes provide numerous instances, while classical Roman jurists never present law as it was in reality and Roman rhetoricians present legal arguments without law. Modern South African cases on delict often proceed on arguments drawn from the Roman lex Aquilia of 287 BC, though it is accepted on all sides that the basic principles of that law had been rejected very much earlier. German law professors in the nineteenth century present German law for a modernised industrial state on the basis of an interpretation of misinterpreted Roman law. Today's American law professors present American law as it never was, is not, and never will be. What is startling about these arguments and conclusions is that the legislators, judges, legal writers and law professors had, and have, no intention to deceive or mislead.