irs, rather than his. For even the most principled of the nineteenthcentury treatise writers, it was practice, not theory, which drove legal development. If the field of English legal theory was a barren one in the nineteenth century, English private law was a field of fruitful development. Indeed, it is to this era that modern scholars look for the foundation of much of the modern legal system. In particular, the modern law of obligations - contract and tort - was largely shaped by the nineteenth century developments. At first glance, these two areas seem to tell very different stories about the influence of theory.The law of contract has often been taken as having been shaped in the nineteenth century under the influence of the will theory, borrowed from continental natural lawyers, particularly through Robert-Joseph Pothier, whose Treatise on Obligations was translated into English in 1806.49 According to Brian Simpson, English treatise writers turned “to the written reason of the Romanist tradition as a source of analysis, categories, and organising conceptions”,50 and thereby transformed a fragmented set of disparate remedies into a unified law. By contrast, the law of tort looks in large part untouched by theory.Although David Ibbetson has argued that the development of English tort law was in some ways influenced by Roman law ideas in the nineteenth century, he notes that the influence of Roman law on the common law of negligence is far harder to find that its influence on contract; and that the common law of tort remained in1900an“uncultivated wilderness of single instances,”which contrasted starkly with the general principles of Art 1382at the French civil code or Art 823 of the BGB.51There might have been good reason for this.When it came to the law of tort, there were far fewer civilian sources drawn on by English treatise writers than was the case in contract law: they simply found no civilian textbook which could guide them in the principles of tort, in the way that Pothier could guide in contract. Even at the end of our period,the two main treatise writers re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 148 49 R.J. Pothier, Treatise on the Law of Obligations, trans.W.D. Evans, 2 vols (London, 1806). 50 A.W.B. Simpson, ‘Innovation in Nineteenth Century Contract Law’ in his Legal Theory and Legal History: Essays on the Common Law(London1987), pp. 171-202 at 178. See also D.J. Ibbetson,A Historical Introduction to the Law of Obligations (Oxford, 1999), p 221. 51 D.J. Ibbetson,‘The Law of Business Rome,’ (1999) 52Current Legal Problems, pp.74109 at 77. III
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