Why Look Backward

Abstract

Historians read old documents to learn about the past. That is a worthy goal, and a good reason for reading old law books. In my view, however, another good reason is to understand modern law. On other occasions I have argued that because modern legal systems are confronting many of the same problems, we should read foreign law books to understand domestic law for roughly the same reason that engineers at Ford should pay attention what engineers do at Volvo and BMW.1 If the legal problems that jurists confronted in the past were like ours, we should be able to learn from them, too. I do not deny that some problems are different even in private law. Modern industrial society needs the modern corporation to permit vast poolings of capital. Consequently, modern jurists have to face problems about the separation of ownership and control that were previously unknown. Conversely, we regard slavery as abhorrent. We no longer address the problem, familiar to Roman lawyers, of how a person can also legally be a thing. But, in private law, these are exceptional cases. As Alan Watson has said, if a Roman jurist were transported to the present, he would find much that is different, but the major surprise, for him, would be the abolition of slavery.2 I teach first year property, contracts and torts. There are few problems that I could not raise with my students if I taught from Roman texts. Anyone who doubts the extent of the overlap should read Reinhard Zimmermann's book on the Roman law of obligations.3 He shows, not only how many modern problems have Roman analogs, but how many supposedly modern solutions emerged when some jurist in the past reflected on a Roman text. If many of our problems are the same, then why wouldn't it be helpful to see how jurists tried to solve them in the past? One answer