Geoffrey Samuef 152 would like to take as its focal point, or at least brief starting point, in respect of the obstacles to harmonisation of the civil law and the common law is Roman law itself, or, more precisely, an observation of a Roman jurist. Regula est, quae rem quae est breviter enarrat. non ex regula ius sumatur, sed ex lure quod est regula fiatd The paradox of this statement is that while it forms the opening words of a title, de regulae iuris, which was to become the foundation, epistemologically speaking, of the whole civil law tradition, it specifically denies that knowledge of law is to be found in rules. This, one might say, is a paradox for which the Romans themselves are not to blame. Yet even in Roman law the importance of the rule as linguistic proposition was becoming increasingly recognised in the Post-Classical period, and not just for its value in terms of a scientia luris. Rules also had political value in the way that such propositions could be arranged hierarchically. What the Roman legislator said, was omnia principis esse intelligantur.^ What the modern legal epistemologist would doubtless say is omnia grundnormae esse intelligantur. Now it would be an oversimplification to say that the major historical and epistemological obstacles to harmonisation are contained in two Roman statements, particularly since the institutional structure of Roman law was not the same as that of the common law despite an apparent similarity of mentality when it comes to ars judicandi.^ Nevertheless the Digest and the Code statements, both of them, act as brief testimonies to an epistemological debate that, in the age of computers and Artificial Intelligence, has suddenly become once again of great relevance. 1. Lawas propositional knowledge One of the assumptions that usually underlies the idea that Europe is moving towards either a newjus commune or a European Code of Private Law is that legal knowledge, including for this purpose the object of legal science, is propositional knowledge. That is to say that knowledge of law consists of having knowledge of propositions - of rules and principles - or, in the more abstract language of Hans Kelsen, of norms.^ One can of course understand why this assumption has become so persuasive: the notion of a legal rule not only seems to transcend all legal systems, acting not just as the object of a general legal science which, in turn, is capable of acting as an epistemological device for explaining the various sources of legal knowledge, but also seems, empirically and historically, to have been the only object of legal theory since the Human- ■* D.50.17.1 Paul. C.7.37.3. ^ G. Samuel, The Foundations of Legal Reasoning (Maklu, 1994), pp. 69-76, 193-196. ^ On the difference between a rule and a normsee C. M. Stamatis, Argumenter en droit: Une theorie critique de Vargumentation juridique (Publisud, 1995), p. 276.
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