The Invention of Law in the West, by Aldo Schiavone, translated by Jeremy Carden and Anthony Shugaar

Abstract

The Invention of Law in the West, by Aldo Schiavone, translated by Jeremy Carden and Anthony Shugaar. Cambridge, Massachusetts, Harvard University Press, 2012. x, 624 pp. $49.95 US (cloth). In this book, the very learned Aldo Schiavone tells the story of how the Roman jurists, over a period of centuries, created, discovered, or--as the title would suggest --invented law, as law is understood in the West. The story is both fascinating and profoundly important. The creation of a legal system occurred only twice in the West, and it happened first in Rome. Roman law still lives today. All over the world, and especially on the Continent, there are legal systems known as civilian, a label that tells us that their basic private law--the law of property, contracts, and of the family--is descended from the ius civile, the Roman law for Roman citizens. And Roman law lives even in legal systems that descend from another invention, which took place in London over a thousand years later. The basic grammar of private law in all Western systems--the organizing concepts of ownership, obligation, debtor and creditor, wrongful harm, the enforcement of promises, and so on--was created by the Roman jurists. How this happened, and why it happened, are questions of enduring significance, and Schiavone's book makes an important contribution to our understanding. The development and evolution of the law generally takes place over very long periods of time. Milsom warned that the importance of such long periods is one of the reasons why it is easy to misinterpret legal history [see S.F.C. Milsom, A Natural History of the Common Law (New York, 2003), pp. xix-xxii]. Moreover, in the study of how Roman law came to be, it must be remembered that the most interesting things .about Roman law are not the parts that are tied to the particularities of Roman society. The law of slavery, the patriarchal nature of Roman family law, the physical recourse that a creditor could have against the body of his debtor: these are of interest only to the specialist. The elements that are of interest to every jurist are the ones that turned out to be timeless, and relevant to every Western society: the basic concepts of private law that have already been mentioned. Schiavone is fully aware of both of these issues. His project deserves praise in that it does not fall into a trap of merely identifying law with power, and thence of trying to understand the evolution of Roman law as the deployment and development of this power. Roman law was not just politics by another name (for example, pp. 172-73, 200); a system of that kind could not possibly have had the subsequent history--we might say, the subsequent success all over the world--that Roman law has had. Schiavone rightly takes a long view of his subject matter, starting at the very foundation of Rome. He focuses on crucial stages in the development of the law, from a mysterious normative order that was a part of religious belief, to an abstract form of normative reasoning that is recognizable to the modern jurist of any tradition. These stages still resonate today: articulation of reasons, justifications for rules and for the outcomes of cases, and the concomitant abstraction of reasoning from particular disputes that leads to the evolution of powerful and general normative ideas like obligation and ownership. …