characterizing modern theories of rights and duties.99 In order to understand Hägerström’s ideas, two theories of law that have had a decisive influence upon the shape and content of modern private law will have to be described. According to Roman law, consensus was a necessary element of a legally binding agreement, but while it only referred to the object of an agreement it is uncertain if Roman jurists thought it necessary that consensus also had to cover the causa of an agreement for it to become legally binding.100 In Roman law the constitutive element for the conclusion of a binding agreement was whether or not certain observable acts, such as the tradition of an object and the declaration of certain locutions had been performed. However, in the natural law theory of the 17th and 18th Centuries these externally observable criteria had been abandoned and replaced by a demand for abstract consensus - the existence of a truly mutual will, with regard to the causa to an agreement.101 The main difference between the two contractual theories can be attributed to the ideologically motivated shift of legal theory that, according to Hägerström, took place in the Middle Ages. To start with, in ancient Rome the prescripts of law, ius civile, were not considered to have a universal applicability.The principal rule was that the possession of rights proper was a question of status (in the main citizenship and freedom, even if ius gentium and the activities of the praetor perigrinus eventually came to grant most free men, regardless of citizenship, similar legal rights).102 a ca l l f o r s c i e n t i f i c p u r i t y 409 2 . 3. 1 Consensus (mutual wi ll ) and promi se s 99 Cf. Hägerström, Obligationsbegriff 1, pp. 1-18. 100 Hägerström,“Nehrman-Ehrenstråles uppfattning,” pp. 594-597 and 615-616; Recht, Pflicht etc, pp. 41-44 and 67-69. Cf. Schulz, Classical Roman Law, pp. 528-529; Kaser and Knütel, Römisches Privatrecht, pp. 72-74 and 152-153. 101 Hägerström,“Nehrman-Ehrenstråles uppfattning,” pp. 615-616; Recht, Pflicht etc, pp. 67-69. 102 Hägerström,“Nehrman-Ehrenstråles uppfattning,” p.595;Recht, Pflicht etc, pp. 41-42; Kaser, Ius gentium, pp. 127-134.
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