|Messages from the Antiquity.
How can Roman Law contribute to the Current Debates in Law?
Roman law is one of the most influential basis of current legal systems and institutions not only in Civil Law but also in Common Law countries. Prof. Reinhard Zimmermann wrote "The Law of Obligations" in 1993 comparing both systems based on Roman law, which brought the expectation among Romanists, that Roman law would and should be the key to harmonize private law internationally. However, this hope has not been fulfilled. One of the reasons may perhaps be attributed to the lack of accessibility of Roman law, since its sources are written mainly in Latin, partly in ancient Greek. Since 19th Century, scholarship of Roman law has been developing in German and Italian languages. English being lingua franca in most of the academic fields today, including business law, Roman law seems to have lost attention from current lawyers. Nevertheless, it does not alter the fact, that the Roman law has rich tradition full of experiences applying itself to various historical and geological circumstances, which could be interesting to current lawyers, too.
In a case of e-commerce, experience of Roman lawyers, who invented the consensual contract in 2nd century, B.C., could perhaps provide a perspective to relativize current issues. Before the invention of consensual contracts, legal validity of contracts depended upon its forms. However, as the consensus rose to be the central concept which obliges both parties to follow what they promised, conclusion of contract became possible regardless of the means, which displays the will of the parties. This was also the occasion, where the gap between parties “real” intention and “displayed” intention, i.e. the error became an issue, whereas only the “display” was of relevance, as long as the validity of contracts relied on forms. Ulpian, a jurist in 3rd century A.D., already shows a concern, which could perhaps be regarded as a beginning of consumer protection.
In other cases, Roman law could be a key to illustrate a current situation without any historical or cultural relation. Japanese way of employment is said to be unique, since it ideally lasts until the retirement of workers with expected rise both in position and salary. Employees should be freshly recruited after graduating schools and universities and be loyal to their companies. Companies do not only provide employees with works but also with recreation and private matters. Ideally employers should treat employees as if they were family members. This is employer-employee relation resembles Roman slavery very much. The owners were interested in well-being of slaves in order to earn the best benefit. However, when the economic situation did not allow them to keep the slaves, they started to hire free men, who had to maintain their lives themselves by concluding locatio conductio. This seems to be the situation Japan is currently facing.
We also might encounter sources dealing with the same problem we face in todays’ world, such as low birth rate. Augustus emphasized that the immortality of the City Rome can be maintained only through reproduction of each mortal citizens and issued a series of law, lex Papia et Poppaea. We might be able to take the experience of Romans as a lesson.
Furthermore, regarding topics such as property rights and intellectual property, we may even predict the future by looking at the historical development occurred in Rome. In the early period, ownership was granted only to Roman citizens with a form, which relied heavily on the testimony of fellow citizens. Without the form, they could only acquire possession but not the ownership. Gradually, however, a quasi-ownership was granted to non-citizens and the form was gradually simplified. When usucapio, the mechanism which converts possession into ownership, was invented, ownership became ius naturale. Intellectual property, which required form, and needed an authority to grant the right, may perhaps turn into a ius naturale in the future.
These are just examples. It is very likely that our colleagues would come up with many more issues to discuss from both sides. I hope the conference would inspire both Romanists and the scholars of current law.