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Private law's revolutionaries: Authors, codifiers and merchants?

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Original languageEnglish
Pages52-65
Number of pages14
Volume14
Issue number14
JournalQueensland Legal Yearbook
Publication statusPublished - 2019

Abstract

Has there ever really been a revolution in private law, never mind the law of obligations? This chapter approaches that question by first considering the relationship between law and revolution in general as set out by the late Harold J Berman. In rejecting Berman’s view that Roman law was not in its own right part of the Western legal tradition, I suggest rather that the Roman jurists provided many of that tradition’s foundational concepts, especially in private law and obligations. These included juristic presentation of private law as a unified whole comprising three subjects: persons (the actors in law), things (put simply, their property and obligations), and actions (the means by which they could claim property and obligations from others). As Berman recognised to a limited extent, these concepts played a further role in legal development from the Middle Ages to the present, not just in juristic writings, but also in association with the ecclesiastical and political revolutions on which Berman focused most. For example, the tripartite division of private law is to be found in all post-revolutionary codifications achieved or attempted from the French Revolution on, including those in the USA. The use made of Roman concepts did however change over time, and it is here, if anywhere, that we may detect revolution rather than evolution inside the law itself. Within obligations, a general understanding of contract as comprising all agreements had its roots in Roman texts; but Roman law itself had never taken the idea very far as a tool for legal analysis. Instead it was developed in juristic writing from the sixteenth century on, in part responding to the realities of contemporary commerce which had long ceased to correspond with the Roman categorisations of particular contracts. The argument therefore is that if the development of private law can be characterised as revolutionary at any point, then the revolutionaries included those who wrote about law in a systematic manner, the codifiers whose work followed on from political revolutions, and the merchants whose business needs otherwise left the law behind.

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