Legal History and a Common Law for Europe ^ 0 ALAN WATSON titutet för Rättshistorisk Forskning • Olin Foundation • Grundat av Gustav och Carin Olin IHCARIN


Alan Watson Legal History and a Common Law for Europe MYSTERY, REALITY, IMAGINATION STOCKHOLM 2001

ToJohn C’airns, Donaldjardine, I Vanco Ferrari and Marco Forsello

GRAPHIC DKSIGN Pdhlo SiltuIoVill PRINTING Anu' l.öfgreti OjfscTAB, Stockholm 2001 ISBN 91-8190-6^- 9 ISSN 16^-0-2299


ACKNOWLEDGMENTS I have dedicated this hook with great affection to four of the younger generation wlio will in different wavs give strength to a new law for the fiuropean Union. But niy dedication is personal, for the strength they give me.

PREFACE In late 1999, I gave a talk at a famous Sicilian University. Afterwards I had lunch with faculty and doctoral students. Subsequently, 1 invited these students to have dinner with me. One of them, Lorenzo,' knowing my passion for Roman law, courteously insisted his law school was old-fashioned; the basic curriculum contained three compulsory courses of Roman law, and not even one optional course on the law of the European Union. Still courteously, he insisted that the Roman law courses should be abolished, and law of the Uuropean Union replace them. His colleagues, rather more shyly, concurred. Lorenzo was talking of one law school, thinking it unique in being out-of-step with legal reality. Not so! d'hat legal education fails to deal with fundamental concerns is a common phenomenon, rhus, when I taught at O.xford from i9>'7 to i96> there were, in the first law degree, two compulsory courses in Roman law and one optional which was taken by the \ ast majority of saidents — the alternatixe was Lnglish Legal 1 listorv. For the higher degree of b.c.l. all students had to stud\- Roman ownership and possession. O.xford 1 Sadly, I never discovered his last name. 13

graduates had also to take a course in condictiones', non-Oxford graduates were compelled to study a general course of Roman law. But there were no courses in tax law, commercial law, famiU' law or procedure. Iwidence and C'onflict of Laws were only in the b.c.i.. syllabus. In this hook we will see other examples from other times and other places, d'his phenomenon in\ ites us to reflect on further oddities of law in society.’ Of course 1 believe that Lorenzo's L niversitv" should teach the law of the Ivuropean Union. But the absence ttf Roman law, which is now widespread, is a grievous loss. An\ course, though, should indicate the relevance of Roman law for law today. Of the four unforgi\ able sins that 1 believe 1 hav e committed, tvne is that, at Oxford, 1 nev er once thought of explaining the relev ance of Roman law for an understanding of legal change and of law and society. Now 1 see things differentlv'. I am much concerned with the factors in legal development, and with the relationship of law’ to society. Roman law is a perfect laboratorv’. We can study it in a small archaic city state and in a world empire, in prosperin’ and ecoiKvmic chaos, in its move froma pagan wtvrld U') the triumph of Christianirv’, from the Roman West to the Cireek lAst, and then to its numerous apparitions in v arious Receptions. We also hav e great information on other aspects of the society. It is a wonder to me that Rome is not a prime object of study for professional legal anthropologists. Roman law figures prominentlv' in this book, but this is nivt a book of Roman law nor of Roman legal historv'. Roman rules and those from elsewhere are examined not for their own sake, but for what they can teach us about the nature of law. My examples are by no 2 For gaps in teaching see, e.g., Robin Evans-Jones, Civil Law in Scottish Legal Tradition,' in Evans-Jones, Civil Law, pp. 3ff. at p. 8. 14

means restricted tn Rome. I am w riting tor all the Lorenzos who, 1 am assured, are numerous, d'heir concerns are with toda\ 's world, and with tomorrow's, and w ith the law ot today and tomorrow. I feel j^assionateK' that know ledge of the past is \ ital for an understanding of today and tomorrow. Law is a nn sterious subject; it operates or should operate on the plane of practical realit)’, hut it dexelops on the level of human imagination. Imagination and reality do not always fit. One ma\- outstrip, or lag behind, the other. Law as imagination ma\' often he aspirational, not realistic. It is aspects of this dualit\' of law that 1 want to e.xplore. Of course, the hook is one-sided. Normally law as realit^■ is more important, hut it is o\ er-stressed. I lere 1 emphasize the prevalence -- too often oxerlooked -- of \ er\' substantial quirks in legal dexelopment due to too much or too little imagination. Without an awareness of how law has dexeloped, law as it is today and will he tomorrow cannot he understood. Lhe hook residts from m\' reflections on Lorenzo and on a meeting held at the Lnix ersity of Maastricht in .May 2000 on the development of a common law for the Luropean Union, d ims, the hook has two strands ofOrigin. I'irst, my reaction to Lorenzo that much of modern law is incomprehensible without a historical anahsis. Second, nu' response to Jan Smits' Maastricht meeting that legal history is a \ ital tool in emisaging a prix ate laxv for the Ixuropean Union, d hroughout the xvriting of this hook 1 haxe had the idea of a ins commune at the forefront of my mind. My hope is that this hook XX ill he a contribution to the dex elopment of this ius commiDic, showing hoxv an understanding of aspects t^f legal history max' indicate possible ax enues of dex elopment, possible pitfalls, the ease and consequences of horroxving, problems in understanding laxv in other 15

countries.' Lorenzo and |an Smits gave me depth and focus. But I have roamed widely; law and mystery. One cannot understand law in societv without an awareness that law is not always as it seems, or as it is claimed to be. The old ius commune was in a real sense accidental, the result of common heritage and massive borrowing. A new ins could be the result ot planning, llien it is fitting to keep in mind the very real peculiarities of law.^ I’his hook is different from other studies on a common private law for the European Union. I am not dealing directly with the ad\ isahility of a common private law code for the whole of the European Union as set out in directives from the Community.' Nor am 1 dealing with the possible structure of any such code as for instance with the t]uestion of whether a model such as the Erench or German code should be followed. Even less am I arguing for particular rules in contract, delict or familv law. Mv concerns are more general; the lessons that may be learned from legal history for the formation of an\’ new ius commune. 3 Inevitably the roots of the book go back beyond 1999. Thus chapter 6 derives frommy paper, 'Curses, Oaths, Ordeals and Trials of Animals,' 1 Edinburgh LawReview(1997), pp. 42off; and chapter 5 from Legal Transplants and European Private Law(lus commune Lectures on European Private Law, 2, Maastricht, 2000). 4 For the dangers of unplanned ius commune see Jan M. Smits, The Good Samaritan in European Private Law, (Deventer, 2000). 5 See, e.g., Ewoud Hondius, 'Towards a European Civil Code: General Introduction' in a European Civil Code, pp. 3ff. For a bibliography see )an Smits, Europees Privatrecht in Wording (Tilburg, 1999), pp. 287ff. See also Ewoud Hondius, 'Finding the Law and Harmonization of Private Law in Europe,' in Europaische Rechtsangleichung und Nationale Privatrechte(BadenBaden, 1999), edd. H. Schulte-Nölke and Reiner Schulze; Stephen Weatherill, 'If I'd wanted you to understand I would have explained it better,' Legal Issues of the AmsterdamTreaty(Oxford, 1999). ®dd. D. O'Keefe and P. Twomey, pp. 2iff.; Making European taw(Trento, 2000), edd. Mauro Brussani and Ugo Mattei. A comprehensive bibliography is set out at the beginning of each chapter of a European Civil Code. For a theoretical approach see Laurent Mayali, 'Romanitas and Medieval Jurisprudence,' in Lex et Romanitas: Essays for Alan Watson, ed. Michael Hoeflich (Berkeley, 2000), pp. i2iff. 16

.\t the Lnivcrsit\’ of (ieorgia 1 teach a course in C'oinparatix e Law that inevitahlv has a strong historical component. After the first classes some students querulousK' ask "When are we coming to modern law.=" 1 understand, hut am tempted to reph’ "We are dealing with modern law." Law is a cultural matter. We live our culture, usuall\' without thinking. 1 w rite this in the confusion o\ er the election of a L.S. president in 2000. Is it sensible that a simple majority of \()tes in any state determines ahsoluteK' the number of electoral totes for that state, and that no attention is gi\en to the proportion of totes cast for each candidate.^; that as a result the popular tote may he outtveighed by the states' result.^: that the electoral college may change the totes of the states.^; that the balloting machines may be defectit e.^ All this is in issue now, but the defects hat e long been there, and hate gone largely unremarked, and certainly unaddressed. Lhe individual chapters, apart from the last, had their origins in lectures, and 1 hat e kept the ot erall structure. I sincerely regret that in chapter 1 1 git e a long text in Latin. 1 had no choice because my point is that a fundamental text has been mistranslated for many centuries. But 1 promise the reader that 1 do not do it again. My oterall thinking has been molded by experience in teaching as a tenured or visiting professor in lingland, Scotland, South .\frica, Italy, the Dutch .Antilles, and the United States of America. Mv prolonged sra\' in the U.S..\. has gi\ en me insights into the possibility of a ins comniu>n’. Yet 1 write as a committed citizen of the I'Airopean Union." 6 The Maastricht meeting entitled The Contribution of Mixed Legal Systems to European Private Law, was wide ranging, with contributions from Scotland, South Africa and the United States, notably Louisiana. 17

ABBREVIATIONS BUCKi-AND, 'Vexthook W’.W’. Buckland, A Textbook of Rotfuiti I.azi' fromAugustus to Justiiiiati, ed., by P. Stein (C'ambridge, 196O. Digexta ffuxtiuiani (d'he Digest of Justinian). K\ ANS-joNKS, Or// Ldii' Robin K\ ans-Jones, ed., I'be Civil l.tiZL' Tniilition in Scotland, (ILdinburgh, lyys"). Gai Institutiones (d’he Institutes of Ciaius). H.\RTK.\.\iF, European Civil Code Arthur Hartkamp et ak, edd., I 'oxvards a European Civil Code (Nijmegen, 199S). J. UistitutwnesJustiniani (Hie Institutes of Justinian). joi.owicz and mchoi^as, 1 f.F.Jolowicz and B. Historical Introduction Nicholas.///.rr///7o// Introduction to the Study of Roma71 Law, H ed. (Cambridge, 1972). K.vsER, P7ivat7rcbt, 1 Max Kaser, Das rlnnische Pydvatrecht, I, 2d ed. (Munich, 1971). N AN HOECKE and OST, Mark \ an Hoecke and Franyois I{arfnonisatio7i Ost, edd.. The llarynoiiisation of Eu)-opeati of Private Law(Oxford, 2000). NV.ATSON, Evolutio7i Alan Watson, I'he Evolutioji of lleste/y/ Private Law (Baltimore, 2001). D. G. 18

WATSON, I.cgiil Innisphitits Alan Watson, Legal 7>v/;/.i'/>A/;/Ar.'An Approach to C.omparativc Lan' (Athens, (ia., 1993). Alan Watson, La-<r out of Co)itcxt (Athens, (ja., 2000). Alan Watson, Roman Laiv and Comparative Law(Athens, (ja., 1991). Alan Watson, Society and Legal Change, 2d ed. (Philadelphia, 2001). Alan Watson, I'he Spint of Roman Law (Athens, (ia., 199'r). Alan Watson, Rome of the Iwelve 7aides: Persons and Property (Princeton, i97'r). Franz W'ieacker, A History of Private Law in Europe, trsl. 'Pony Weir (Oxford, 199>). WATSON, Out of Context WATSON, Roman Law WATSON, Society WATSON, spirit WATSON, XU lahies w iKACKKR, Private Law 19

Chapter Confusion in Fundamental Sources; Misunderstandings I rhe opening texts of justinian's Institutes are among the best known legal texts in the western world, f'or centuries they were the heginning of all law students' education. M\’ concern in this first chapter is w ith hook i title 2, the principtum, and §§i and 2, on the distinction between ius natiiniU\ 'natural law,' ins gentium, 'the law common to peoples,' and ius eii'ile, 'the law particular to a gi\en state.' The texts are fundamental for an understanding of law. My contention is that the texts are a lesson for draftsmen. Fhew are confused and confusing, and ha\e, indeed, confused. Indeed, the standard, accepted translations contain in the first sentence of § i two serious errors. 21

I'hc texts of the principiumand §i read: lus narurale esr quod narura omnia animalia docuir. nam ius isrud non luimani generis proprium est, sed omnium animalium, quae in caelo, quae in terra, quae in mari nascunrur. hinc descendir maris atque feminae coniugatio, quam nos marrimonium appellamus, hinc liherorum procreatio et educatio; videmus etenim cetera quoque animalia istius iuris peritia censeri. 1. Ius autemci\ ile \ el gentium ita dividitur; omnes populi qui legibus et moribus reguntur partim suo proprio, partim communi omnium hominum iure utuntur: nam qin^d quisque populus ipse sibi ius constituit, id ipsius proprium ci\ itatis est \ i)carurque ius ci\ ile, quasi ius proprium ipsius ci\ itatis: quod \ero naruralis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur \ ocaturque ius gentium, quasi quo iure omnes gentes utuntur. et populus itaque Romanus partimsuo pn)prio, partimcommuni omnium hominum iure utitur. quae singula qualia sunt, suis locis proponemus. A Standard translation, that ofJ.A.C". Thomas,' runs: Natural law is that which nature instils in all animals. Kor this law is not peculiar to humankind but is shared bv all animals which are born on land or in the air or sea. From it deri\ es that association of man and woman that we call marriage; .so also the procreation and rearing oF issue; For we see that animals also are imbued with e.xperience oFthis law. 1. Cu\ il law and the law oFnations, however, are distinguished in this wav. .Ml peoples who are governed bv laws and customs use law which is in part particular to rhemsehe.s, in part common to all men; the law which each people has established tor itself is particular to that state and is stvled ci\ il law as being peculiarlv ot that state; but what natural reason has established among all men is obser- \ ed equally b\' all nations and is designated iusgentiumor the law ot nations, being that which all peoples obey 1 lence the Roman people observe parrh their own particular law, partlv that which is common to all peoples. \\ hich is which, we shall explain whenever it is desirable to do so. I'o look first at thepHiicipium in isolation. It presents us with manv of the problems inherent in law, or in official statements of law. It 1 The Institutes ofJustinian, (Cape Town, 1975), p. 4. 2 Thomas confusingly has 'nations.' 11

does nor show natural law as it is in any meaningful wa\’. \\ here is Ciod in this Byzantine natural law? 1 le does not appear. 1 le does vevx nuieh in earl\’ Cdiristian writers such as Lactantius (eirca 24o-:?2o) Epitome 6, and St. Augustine ■74-4^0) Dc lihcro (irhitrio 1.6. 47f.). ^et Justinian's liyzantium was a hotbed of religious eontnnersy. .\loreo\ er, (lod is also remarkahh absent from bothJustinian's Digest.' Mv explanation in the past and now has been that Justinian's compilers restricted themselves to the sources of Roman classical jurists; the\ subtracted what they no Umger wanted, but scarceh' changed or added to the substance.^ The Rt)man jurists stopped writing around 2;^^. .\nd the\’ were all pagans: so no Cdiristianit\' in the bod\' of the Digest or h/stitiite.f. But then classical philosophical notions of natural law as law based on reason or li\ ing in accordance with nature such as we find in Aristotle \ieomacbaeau Ethics v7.i, Rhetoric 1.^.2, or Cncero De re piihlieii v22.;?;; also do not appear. My explanation has long been that the Roman jurists were interested onl\’ in positi\e law, not in philosophical notions of law. d'his Institutes' definition of natural law was preferred preciseh’ because it is meaningless, and natural law could then be ignored. Narural law is downgraded to instinct, common to animals and humans alike. But we should notice how restricted even this notion of natural law is. The Institutes lists only the conjunction of male and female (that we call marriage), the procreation' and rearing of children. No positiv e legal rules can be deduced from this. Nor is it clear on the face of the text whether we are giv en an exhaustiv e list of the elements of natural law or merely examples. Interestingly, in the Digest 3 See, e.g. Watson, Out of Context, pp. 34ff. 4 See now Alan Watson, 'The Spirit of Justinian's Law,'/>7 Studi in onore de Mario Talamanca (Rome, 2001), pp. 2oiff. 5 Not "bearing" as Peter Birks and Grant McLeod translate; Justinian's Institutes (Ithaca, N.Y., 1987), p. 38. 23

i.i.;? the classical jurist Florentinus lists selt-defense as part of ius juitunile. So tvpicalh' do jurists writing after the Corpus luris Civilis. Not onh’ that, hut there is something wrong with the introduction here aiucurio, "rearing." SureK', whoe\ er is or are responsible for this te.\t knew that many fish, insects, reptiles do not rear their offspring.' And if marriage is so central to natural law what about Bvzantine restrictions on, and penalties for, ditorce.^" d'hese were not applied nor thought applicable (so far as I kiunv) to non-human ereattires. .\lv e.xplanation, which 1 hope will not be regarded as c\ nical, is that here we have further et idence that the draftsmen were just not interested in natural law. Nothing contrart' to the abo\e can be deduced from D. -ro.n.:^! (Llpian ad Sahunim4:^;) As tar as concerns the ci\ il law slaves are regarded as nor e.xisring, not. howe- \ er, in the natural law, because as tar as concerns the natural law all men are equal. I'here is no grandiose moral thought here. As Otto Lenel has shown, the conte.xt ot the te.xt is the Roman anidictio, the action claiming that the defendant ought to return something to the plaintiff, d'he precise context is probablv where a sla\ e paid a "debt he owed" from his peculium (the fund his owner allowed him to use), although he could not legalK be bound because he was not tree. .After manumission he sought to recov^er, but failed because he was under a natural obligation to pav. Of greater interest to us, though, is the beginningof §1. .A standard translation, as we ha\e seen, is "Cu\ il law and the law of nations, howewer, are distinguished in this waw" Fhe Latin auTcm, most reasonabb’ translated as "But," is moved in the translation from its place 6 See, e.g., Buckland, Textbook, pp. iijff. 7 Palingenesia luris Civilis 2 (Leipzig, 1889), p. 1173. 24

as second word in the sentence to a nuich later point. The most recent Dutch translation omits the completeh’: "1 let ins civilecn het ins goitinm worden als xolgt onderscheiden."'* So does that of Birks and .McLeod: " Lhe law of all peoples and the law of the state are distinguished as follows."' Indeed, the last ha\ e even im erted the Latin, placing "the law of all peoples" before "the law of the state. The newest (ierman translation is equalh’ fault\', though this ma\’ he less evident because of the (ierman usage of compound words, and because the translators do gi\ e nntem, "aber" a place: "/i\ ilrecht aber und N ölkergemeinrecht |ius gentium] werden wie folgt unterschie- .\n accurate, though less attractite translation woidd run: "Recht aber, /i\ il- oder N olkergemein- w ird w ie folgt unterschieden." »M0 den.M I \ The misrepresentation of Birks and McLeod is understandable.’’ .\fter all, the preceding title, 'J. i.i, ends at § 4., collcctnmcst oiimcx natnrnlihus prncccptis ant gentiumant civilibns, "For it (law] has been gathered from natural commands or of peoples or of states." Indeed, y.1.2 is headed, De iure naturali et gentium et ci\ ili. This seems the natural progression. If ins natnrale is the law that applies to humans and animals alike then we would expect its treatment to be followed by the law that applies generalK’ to peoples, and only then followed Iw the law found in particidar states. But that is not what we ha\ e in y.i.ipr. .\n important question is win' ins civilex'S. treated here before ins gentium. 1 would like to propose as an answer a certain confusion 8 ). E. Spruit et al.. Corpus turis Civilis, Tekst en Vertaling, i, (Zutphen, 1993), p. 12. 9 Justinian's Institutes, p. 38. 10 Their translation of the Institutes is often just wrong, often far from the spirit of the original. If this translation is used at all, it must be used with caution, and checked against others. 11 Corpus turis Civilis, Text und Ubersetzung, 1, Institutionen, trsl. by Okko Behrends et al. (Heidelberg, 1997), p. 3. 12 For a good conventional discussion of the texts see Geoffrey MacCormack, 'Sources,' in A Companion to Justinian's Institutes, ed. Ernest Metzger (London, 1998), pp. iff. On the difficulties of translation see, e.g., Robin Evans-Jones 'Civil Law in the Scottish Legal Tradition,' in Evans-Jones, Civil Law, pp. 3ff., at p. 7. 25

of thought on the part of the compilers (resulting from their treatment of ins )iaturiilc) and a corresponding common modern misunderstanding of the beginning of y.i.2.1. Let us look at the modern misunderstanding. Idie issue is realh' the force to he attributed to aiitcm, "But." d he usual position of aiitcm in a Latin sentence is as second word. It is probabh' not surprising that I’homas has "howcwer" in a much less prominent position. Latin also uses conjuncti\es much more frequentlv than do most modern Kuropean language.s, so it is not too surprising that J.L. Spruit does not translate aiitcm at all. i5ut the placing of the strongh' ad\ ersati\ e aiitcm is astonishing in our te.xt. C>ertainlv it is the second word in the sentence but in this instance on the usual modern understanding of the sentence that is preciseb’ where it should not be. On the conventional \ iew, aiitcmis pointing the distinction between ///.r c/zv/c and ins gentium. But then the position is entirely wrong. It should not come between ins and r/z'/7cbut after civile: itis civileautem vclgentium. 'Lhe adversatit e nature of the autemis with what proceeds. Lhe compilers have discussed natural law which appears not as lawbut instinct, then we have: "But law, (whether) of a state or of peoples, is thus di\ ided." Lhe authors are making a sharp distinction between the law of nature and law. This, indeed, was a distinction well recognized in the 17th centurx’ and before, but not based on the positioning of autem. If m\' sugggestion has validitv we can now understand wh\’ ins civile comes before iusgentium-, the compilers had no interest in a logical progression from ius naturale: ius naturale just did not count. Lhe idea coidd not be ignored, but it coidd be rendered meaningless. On mv \ iew it does not matter w hether ius naturale tor the compilers of the /n.rtitutes was not law, or was simply so different fromius civile and iusgentiumas to be irrelei ant. d'here are further points to be noticed ab(')ut the four translations 26

I lune cited. In § i thc\’ all take the singular \erh divulititr, "is di\ ided," and make it plural: "are distinguished." .\nd they take the disjunctive vcl, "t)r," to he the eon)uncti\e et, "and!" .\n accurate translation must he something like: "But law, civile or gentium^ is di\ ided like this." Ins luitimilcx's, thus e\ en tiirther separated fromthe concept of law. Indeed, the misunderstanding of the positioning of autem demands the mistranslation of vcl and dividitiir. The mistranslation of vti and dividitur in its turn is perfect evidence of the misunderstanding of ins nntumlc in the te.xt.'* II But if m\' approach on niitcm and vcl and dividitur x's correct then 'J.x.i.x is drawing a \ erv sharp distinction hetween iits }iiitHridc ax\x\ ins gentiumwhich is emphasized Iw the interposition of ins civile. It then hecomes possible to gi\ e meaning to omnespopnli (jni Icgihns ct monhns ngn)itnr., "all peoples who are got erned h\' laws and customs," who are go\erned parth’ h\’ laws of their own state, parth' h\’ laws common to all men. Fhe Latin 1 ha\e just given does not refer to "all people," hut only to "all people who are governed hy laws and customs." That is, there mav he a restriction of ins gentiumto "civ ilized people."//O'gc;/////wperhaps does not applv t(v all peoples, d'he notion of a difference between ins nntnrulew WxcVx applies to all humans (and all other animals) and ins gentium which mav' applv onlv to civilized people is enormous, and was much appreciated in later centuries. Indeed in modern International Law, often termed ins gentium, the law is that generallv found among civilized nations. 13 For difficulties of understanding old foreign lawsee, e.g., Douglas Osier, 'Specificatio in Scots Law,' in Evans-)ones, Civil Law, pp. looff. 27

III We Inn e lonked at the pruicipiumand the heginning or§ i ot yi-2If iny analvsis is accurate, something \er\' odd is gtnng on. We are introduced to natural law, bereft of all religious and philosophical implications. After the claim that law came from three sources, (i) common to all animals, (2) common to mankind, {7,) proper to one state, then surprisinglv natural law appears as mere instinct. Not only that, the description of this instinct is inaccurate. Rearing of offspring is not uni\ ersal among animals. I'hen § i begins as if natural law was no law at all, or so different in kind from /Wmv/cand ins gefitiuwas to be inccmsequential. The law of a particular state and law found among states appear in an arrangement contrary to what one would expect if natural law was law, and is even contrary to the arrangement in the title heading. IV § I continues with a description o\ itis civile. But then comes what is truh’ astonishing, the discussion of ins gentium. "But the insgentium is common to all of the human race." fhen in § 2 on ius gentium-. "hrom the demands of events and human necessities, human societies established certain laws for themseKes; for wars broke out, and capti\ities followed, and sla\er\' which is contrarx’ to natural law. For by natural law, from the beginning all men were free." Here the Institutes \\'SC'S< ius gentium to mean (among other things) "international law," a sense scarceh’ found in the Roman jurists-it appears onl\’ twice in the Digest, at D. i.i.r and D. s'o.-'.uS(i7)-though it is in Cucero, and is particularly common in Idvy.'^ What we do not ha\ e here is ius gentium meaning that part of the law within a state that is found 28

among all states ruled hv laws and customs in the sense gi\en at the heginning of the text. Fhen there is the reference to sla\ erw Slaver\' is part of the ins gnitiiiw, common to all peoples, hut, we are told, contrar\’ to ins tiatnralc. The reason gi\ en for this has nothing to do with natural law as just described. .And the reason, "From the beginiiing all men were free," immediateh’ prompts the question: "Is the keepingof pigs likewise contrary to natural law.^" If the answer is \ es as it oh\ ioush’ must he on the rationale gi\ en, for all pigs were once free, then what exactU' is the status of natural law.^ In law, nothing! (Win’ is there such a paucity of juristic texts using ins gentium to mean 'international law.^' Fhe iurists cannot ha\e been unaware of that sense. \l\’ explanation is simpK’ that for historical reasons the jurists were just not interested in international law, and concentrated almost entireK’ on pri\ ate law.'") Fhe text § 2 concludes: "I'romthis ins gentium also, almost all the contracts were introduced, as sale, hire, partnership, deposit, loan for consumption, and innumerable others." 1 woidd stress pnene^ "almost:" not all of the contracts are introduced from ins gentium. Significanth' omitted fromthis list of contracts is stipnlntio, the oral unilateral contract that could he used for an\ thing that was legal, hut originally, when it was "introduced," onl\’ by Roman citizens. 'Fhe contracts mentioned are those Roman contracts that under Roman law could he used by foreigners, as well as h\’ Romans. We thus ha\ e here a different meaning of ins gentium: that part of Roman law that could he used by foreigners as well as citizens."’ 14 See, e.g., Livy 1.14.1; 2.4.7; 4 i-2; 4.4.4; 4.19.3; 5.36.6, 8; For a full listing see David W. Packard, A Concordance to Livy, 2 (Cambridge, Mass., 1968), pp. 738f. 15 See already, Watson, Spirit, pp. 42ff. 16 See, e.g., Thomas, Institutes, p. 7. 29

What d()es nor appear in this more detailed discussion ot ins go/- tium is preciseK' the sense attributed to it at the outset; legal rules coininon to all human societies. The ending ot § i confirms my interpretation of aiitcm\ "And so the Roman people uses in part its own law, in part the common law of all men. Which is which we shall set forth in their proper places." Roman law is thus composed partly ot i/zs civile, partly ot insgoitiuw. Again ins does not appear. And the final sentence indicates that ins civile And ins gentinrn make up the whole of Roman law. VI d o put it simply, the famous opening ofy.1.2, "On the natural law and of peoples, and of the state" is on its own terms simply nonsense, utterly confused and confusing. How can one e.xplain this.^ My answer is that it is an introduction that the compilers had no interest in, but felt forced to include. As an argument for this proposition, I could cite the opening pages of many contemporary American legal casebi^oks that giye some history that is ine\ itahly vx rong. But my wife, also a law professor, forbids me: "It would be in bad taste." Nowadays, relatixely little attention is paid to this part ofJustinian's Institntes. Natural law in modern discussions deriv^es largely from Thomas Aquinas and Francisco Suarez. Insgentiumis treated as meaning "International Law." But this was not always the case. The Institutes' confusion set the scene for much that was to come. 30

^er one result was a basic split in juristic writing and thinking. Despite some window- dressing, writers on pri\ ate law ignored narural law. riiere is a lesson here tor legal draftsmen. Do not have windowdressing at the beginning of \'our te.xt. At least, treat the opening seriouslw Indeed, it is proper to take the misunderstanding of the {)ri7icipinm further. .\t the end of the discussion of natural law we ha\ e: vidcmns etciiimcetcru (joqueiniimalia istiiis iiirispcnt 'ui ccuscri. 'Phomas translates: "for we see that animals also are imbued with e.\perience of this law'"' Birks and McLeod translate: "Ohserxation shows that other animals also acknowledge its force".Some similar approach to the te.xt prompts d’ony Honoré to write: Ir looks as if the famous passage of L Ipian on the law of nature, in which he asserts tliat animals are thought to know about marriage, the procreation of children and their education hv experience {pcntin), and hence not merely by instinct, is to he taken as Neoplatonic.''' Not right, of course, hut translation has cotisequences. 1 will concentrate on pcHtiti and a-f/srri, and translate: "I’or we see that other animals also are imagined with knowledge acquired hv experience with this law." ('rnseri äs "to he imagined" or "to he thought (often mistakenly)" is a standard translation in other contexts.'" "Idiis in the passix e relates to «//;■ perception, and "are imagined" is much \ aguer than I'homas' "we see," or Birks and McLeod's "other animals also acknowledge." Peritia is defined in the Oxford Latin Dictionary as "knowledge acquired hv experience, skill, expertise, etc.’’ 17 Institutes, p.4. 18 Justinian's Institutes (Ithaca, NY, 1987), p.38. 19 Ulpian (Oxford, 1982), p. 31. 20 Oxford Latin Dictionary, ed. P.G.W. Glare (Oxford, 1982). P. 297. 21 P. 1343. 31

Thus, nothing in the text indicates that animals ha\e this knowledge or that we see that thev ha\ e. We imagine it.'" Ot course there is a philosophical background to humans thinking about animals sharing in rationalit\’, hut nothing that would iustifv llonore's conelusion that Ulpian, the author of the text, was a NeoPlatonic. M\' translation of 7.1.2. pr. then would he: \arural law i.s that which nature taught all animals. I'or that law is not particular to human kind, hut to all animals that are horn in the skv, <ui the land, in the sea. Fromit descends that mixing together of male and female that we call marriage, from it the procreation and hringing up ot children: tor we imagine the other animals also with knowledge ot this law. \ II To this point 1 ha\ e focused e.xclusix eh’ on y.i.ipr., i and 2, hut a few other texts must he taken into consideration. . Sed naturalia quidem iura, quae apud omnes gentes peraeque ser\ - antur, di\ ina quadam pro\ identia constituta, semper tirma atque immutahilia permanent: ea \ ero quae ipsa sihi quaeque ci\ itas constituit, saepe mutari Solent \el tacito consensu populi \el alia postea lege lata. II. Now, natural laws which are followed h\ all nations alike, deri\ ing trom di\ ine providence, remain alwavs constant and immutahle: hut those which each state establishes for itself are liable to frequent change whether hv the tacit consent of the people iir hv subsequent legislation. ‘ More confusion. Inni miturtiliu-'x'^ this plural the same as the singular ins thiruniUr -are followed h\’ all nations. .Vre thee therefore the same as insgentiumor at least include all of the insgeutinm? 1 doubt that this 22 The closest understanding of the text to mine that I know is that of Vinnius, In quattuor libros Institutionumimperialum Commentarius: "Idest, haberi properitis hujus juris, eorums namero adscribi". 23 The translation is again that of Thomas, Institutes, p. 6 32

is the meaning, because then sla\er\’ (which is part of the insgaitiuni) would he included in natural law. Now, indeed, and for the first time in lustinian's compilation a quasi-religious element is introduced. htra naturiiliii are established hv di\ ine pro\ idence, and are unchangcable. In this they differ from laws which each state establishes for itself. C'onfusion is increased! It should be stressed that divitia providentin is not specificalh’ (diristian. I'he idea is pagan, witness Cncero De repiddicii ;.22.:^y brief attention should be gi\ en to D.i.i.z, y 4; .'4 l’ri\ arc law is tripartite, heiny derix ed from principles ot itis )iatuniU\ insgentinm, or ins civile. 3- Ins iitirnnde\s. that w hich nature has taught to all animals; lor it is not a law specific to mankind hut is common to all animals-land animals, sea animals, and the birds as well. Out of this comes the union of man anti woman which we call marriage, and the procreation of children, and their rearing. .So we can .see that the other animafs, wild beasts inclutied, are rightle understood to he actpiainted w ith this law. 4. Insgentium., the law of the nations, is that which all human peoples ohserxe. fhar it is nor co-e.\rensix e xx ith natural laxx can he grasped easilx', since this latter is common to all animals xx hereas ms gentium is common onle to human beings among themseixes. The texts are taken from Ulpian's histittitcs, book 1, and they ob\ ioush’ were at the base of the account in Justinian's bistittites which, howexer, goes much further. I lere again natural law has no legal sinificance, but it is not set in contrast with itts getttiumand itts civile. I'he Ittstitiites (iaius, w ritten about i6r’' but reallx’ unknown in much later times until the discox erx' of the \ erona codex in ibi6-and hence without impact on subsequent dexelopment-begins: (/.i.i. . /// peoples vdjo nregoverned hy Lives and customs use lave vebieh is partly theirs alone andpartly shared hy all mankind. The laxx xx hich each people makes for itself is sjiecial to itself. It is called 'state laxx', the laxx peculiar to that state. 24 Cf. also, Cicero De legibus, i.7.22ff.; 1.11.17-12.8; 1.15.42-16.45; 2.4.9!. 25 Francis de Zulueta, Tbe Institutes ofGaius, 2, (Oxford, 1953), p. 5. 33

IJiit tlic law which narural reason makes tor all mankind is applied in rhe same wa\' e\ervwhere. It is called 'the law ot'all peoples' because it is common to e\ erv nation. The lawot the Roman people is also partlv its own and partK' common to all mankind, \\ hich parts are which we will explain below.-'’ The words in italics are a reconstruction; the\' were written in red ink that has faded. Nothing is said of natural law. Ins gnitinw is not used for international law or e\ en tor that part ot Roman pri\ ate law that was open to foreigners. It is used e.\clusi\el)’ for that m\ thical law established b\- natural reastm and found among all people. VIII rhe scene was set; or rhe unscene was unset. Natural law in justinian's Institutes was firmlv detached trom philosophical and religious notions of narural law. But then it was somewhat, and amhiguouslv, reattached ^;/.i.2.ii). d'hough legal theorists like Aquinas and Suarez" might stress the importance and ultimate religious significance of natural law, pragmatic jurists, howener religious in their own li\es, saw something different. For instance, in Spain, .\lfonzo the \\ ise, whose great and enormous compilation Las Siete Partnias prohablv took shape around I26^, could praise libertx’ as natural, and then treat slavery as part of the ius gentium with no indication that sla\'er\- was improper or contrar\’ to religion.’'^ rhe subsequent interpretation of the justinianic texts was \ arious. But one can generalize. Thus ius natunile, it was claimed, had two senses: improperb’ it was instinct common to all animals including 26 The translation is that of W.M. Gordon and O.F. Robinson, the Institutes of Gaius (London, 1988), p. 20. 27 De Legibus, ac deo legislatore (1612). 28 Las Siete Partidas 1.1.2; 4.21.1; 4.22; cf. Watson, Roman Law, pp. 2i6f. 34

huiiinns, propcrK’ it was luiiiian law found among most civilized narions. liis had two meanings: law found among most ci\ ilized nations, hence ins gaitiumwas natural law in its proper sense; in its other meaning insgnitimn was international law in the modern sense (found in J. 1.2.;).'' Still that is not our concern in this chapter. Nonetheless, the scope for confusion was so great that we find as early as the Piimf)hmsis^ 1.2.1, of "fheophilus (who is helie\ed to he one of the draftsmen of the Institutes) the \'iew that ins gentium is wrongly termed ins natnrale. (d'his, of course, is entirely the opposite of the common i-th centur\' \ iew that ins nntnnile in its proper sense is the same as one meaning of ins gentium.) .\nd the scope of confusion and difference of opinion is well- e\ idenced in the Accursian CIloss.'" IX To indicate some of the unexpected conscHjuences of the confusion in the Institutes I choose to look hriefl\' at one work, janus A C'osta IXS. Jnstiniani In.mtntionnm Lihri Qinittnor, in the edition of Joannes \ an de Water with notes by d'heodorus Marcilius and Marcus Antonius Muretus (Utrecht, i':’i4). The multiplicitx' of authors indicates the commonplace nature of interpretations. Marcilius comments on the title: " Fhe ci\ il law of the Romans springs in part from natural law, in part from the laws of peoples, in part from the law of the state, as if from a triple principle, d ims, from these prin29 For three different but typical views, see, e.g., ).F. Böckelmann (1633-1681), Commentariorum in Oigesta Justiniani Libri XIX, i.i.23ff.; George Mackenzie, Institutions of the Lawof Scotland (1684), 1.1; Johannes Voet, Elementa Juris secundumordinem Institutionum Justiniani (1700), 1.2. A translation of the passages of Voet and Böckelmann will be found in Alan Watson 'Some notes on Mackenzie's Institutions,' 16 lus Commune (1989), pp. 303ff., and pp. 304ff. 30 For a modern view of ius gentiumas international law and natural law see Francois Rigaux, 'Monism and Dualism within the European jurisdictions' in Van Floecke and Ost Harmonisation, pp. i35ff. 35

ciples is given this title." A (^osta eomments on ;7/o' luiturale cst "\’erv close to law is that which men do hv reason and right. Also, when we see brute animals so act, certainly in these we notice traces of this law: as in self-protection which by the iits gentium is permitted to men with a certain moderation, we sav the law is constituted bv reason, d'he same selfprotection nature ga\e to all animals, and skill in it... And this selfprotection men ha\e from nature itself in common with beasts: to which, howexer, natural reason sets a limit, and thus bit bx' bit it begins to depart from natural laxv. If x'ou subtract this limit, simple natural laxx remains, xvhich the first men xvho had not vet groxvn-up reason used..." Muretus on Omnin animaliir. "Respectfully notice, indeed, that there is no laxv in animals: for they lack reason xvithout xvhich laxx is not possible: and if there xvas laxx- in them they could cause a legal iniurx’, xvhich they canntit." Muretus then claims that some traits, nurturing of offspring, self-protection, are common to beasts and men, and continues: "This is called Jus uiitunilc. fhere are some other matters that, indeed, are obserx ed bx’ men xvith nature itself as guide, but of these there is no trace, ntit even the slightest, in brute animals. For e.xample: among all people legates are sacrosanct; he xvho bux's is compelled to pay the price, xvho sells to delixer the object.... fhese are referred to the us gentium because indeed thex’ are obserxed bx' all peoples; but of these no instance can be discerned in brute animals. But this Jusgentiumitself is called Jus nutunile. In fact there are x erx' fexv places in the laxv in xvhich Jus naturale is understood differently fromJusgentiion. d'he learned, hoxvever, make this distinction that natural laxv in one sense is called Secvmdarx’, in another Frimarx'. But this is both in x ain and inept..." No more need to be said, fhe ^/.rr/V/zrc.r deprix ed natural laxx of a moral presence, and opened the door to confusion. This might not 36

marter, except that the ///.lY/V/zrc.r was the primary educational tool of law students. \ In conclusion I would like to sa\’ a little in explanation. Law operates, or should operate, on the le\ el of reality. Law dex elops on the le\el of invagination. Frequently, reality and imagination do not mesh. Sometimes imagination outstrips social realit)’. Often social reality lea\ es imagination far behind. A legal rule or institution, once in place, ma\ he hard to shift. And a starting point in law may ha- \ e \ ery unexpected consequences, and may determine the course of future de\ elopment." Law casts long shadows. For example, the famous Roman codification, the 'Fwelye Fables, of around q^i/qs-o B.t:. gave equalitv’ in law^ to patricians and plebeians, but it presented onl\' the law that the patricians were willing to share with the piebeians: pri\ ate law alone, not public law or public office. ' in an adroit mox e, the patricians gat e a monopoly of interpretation of the Fwelye Fables to the C'ollege of Pontiffs, the main priestly body, w hose members of necessity were patrician. IVom this C>ollege de- \ eloped the rise of the Roman jurists. But true to their original remit, the jurists restricted their attention to legal interpretation, not to reform and not to systematization. Likewise, their attention centered on pri\ate law, the contents of the dwehe Fables. I^ublic law was almost entireh’ ignored, lienee they ignored international law which in Rome actually had a rich heritage. I'or the early period 1 would mention the ins fctiale which controlled relations between the Romans and other Latins,” for later 31 See infra Chapter 3. 32 See, e.g., Watson, Spirit, pp. 55ff. 33 Cf. Alan Watson, International Lawin Archaic Rome: IVar and Religion (Baltimore, 1993). 37

times we ha\ e the e\ idence of writers such as Li\ So ins gnitiiimas meaning "international law" is almost in\ isible in juristic writings. Similarlv, with this stress on interpreting pri\ate law, the jurists ga\e no thought to natural law. For them phihcsophical notions of natural law were a non-e\ent. 'Fhe interpretation allowed to the pontiffs was that of the Fweh e I'ahles, hence also of law deri\ ing from it: ci\'il law. But much law was in effect created hv the praetors, the important elected officials who had control of the courts, and who annuallv set out an Edict demonstrating the actions thev would allow. 'I'his edictal law was treated as outside of the basic remit of the jurists. The earliest juristic commentaries on the ITlict are considerably later than those on the d'weKe 'fables or the ci\ il law.’^ Naturally, thev had to deal with the Edict - after all, it was an essential element in private law - hut until the end t)f the classical period, the great jurists like Llpian wrote separate commentaries on ci\ il and on edictal law; a nonsensical approach since there was only one main system of courts. But the later edictal law was a\ ailahle usualK’ to foreigners as well as to citizens: ins gcnrinm. Here then we have the juristic formulation, which made for confusion. Natural law is nothing. International law is ignored. Still, the terms ins natunilc and ins gentium have to be noticed. Ins natnrale is swept awa\' as instinct. Ins gentium, in a ct)nfT.ised wav, becomes the law common to Romans and others \I little more must he said about the confusion in the te.xts. fhe 34 The first commentary on the Edict was by Servius at the end of the republic. It was very short, in only two books: Fritz Schulz, History of Roman Legal Science (Oxford, 1946), p. 91. 38

compilers ot the Institutes had in front of them onl\’ the elenientar\' works of the classical jurists. A fact astonishing in itself. \\ hen these works contained nothing apropos, the compilers relied on their memories which often failed them. I'hev did not e\en consult the Code or Digest, lienee the discrepancies hetween the Institutes on the one hand, and the (.Wcand Digest on the other: for instance, on nrm, earnest monew, in sale; on the scope of the ewtio depanperie, damage cansed h\' animals; on the aetio Sereiioni and interdietion Snlviai//nn, remedies for pledging of property; and aho\ e all the unhelievahly garhled account of procedure." 'The draftsmen of the Institutes were in a rush, justinian gat e tlie order for compiling the Institutes only after the completion of the Digest'" But the two works were to appear together, and justinian would not hate wished to delat’ publication of the important Digest. The compilers of the Institutes were under e.xtreme time pressure. XII 'This first chapter raises many issues, et en though it is too early to draw general conclusions from it for a common law for the fiuropean Union. I'irst, it shows that et en an official statement of the law may e.\- elude social realities. In t iolently Cihristian Byzantium, natural law (in the Institute.':) has no place for Ciod. Second, official statements of law may say nothing that is meaningful for law: natural law is called law, hut then is treated as nonlaw. It is brute instinct. d'hird, official statements of law may l>e incoherent. lus gentium 35 Watson, Out of Context, pp. 22ff. 36 Inperatoriam maiestatem§ 4. 39

appears with three meanings: (i) law found among all mankind; (0 international law (a sense almost ignored hv the Roman jurists); (];) that part of a legal system that is not restricted to citizens, 'hhe first meaning is legally meaningless. I'ourth, drafting ma\’ he had, a subject to which I will return later in the hook. Here 1 would emphasize that to understand a legal te.\t one must e.xamine its pro\ enance: the circumstances in which it was drafted; the responses in it to the foreign societ\’ on which it ma\' rely.' I'ifth, because of language difficulties a \ ital and much studied te.vt may he misunderstood for centuries. Si.xth, absurdities in a highly regarded source may lit e on. d'hey may be reinterpreted, but perhaps not abandoned. Subsequent commentators on the Institutes not simpK' ignore the present discussion. The texts determined some t)f the scope of ins naturah' and ins gentiumwith social consequences. 'Fhese opening texts have still an impact today, even if only indirectly, and this will increase with a common law for Kurope. 'The issue is the importance to be attached to a law froma different )urisdiction. I would like to present the issue fromccvmmon law jurisdictions. Let us imagine a ca)urt in the L.S. state of Cieorgia faced w ith an issue for which there is no relevant statute or judicial precedent. Naturally the judges look at the law from other states, let us say South Chirolina. But what they will consider is only case law, never stature. \\ hv ? 1 hav e often asked my students and ev en colleagues, and they have no answer. It cannot be that somehow judges in South C'arolina are more in touch with the needs of Cieorgia than are South Carolinian legislators. I'he answer lies in the justinianic texts we have looked at, and in their hisnvrv. From the confusion of the Institute.^ texts later commentators drew the following conclusions: 37 A prime example is the French civil code's articles on delict. 40

Nariiral law in its proper sense is the law found among ci\ ilized nations, lus gnitiinn in its primar)’ sense is the law generally found among civilized nations. Thus, basicallv, natural law and ius gentium were the same thing. \\ hat this is, is not found through the deep reasoning accessible onlv to a lew’ indi\ iduals, hut a general understanding wideK' and easil\- accessible: the Law of Reason. Ch\ il law is an addition to or a subtraction from this ins gentium. This ci\ il law is particular to an indi\ idual state which has the right to make its ow n rules. But otherwise the Law of Reason, iusgentiumor common law remains supreme. Law, therefore, not made by statute is common to all. I'or earlier times 1 lugo (irotius makes the distinctions in his InleiJinge tot de Uollundsebe Reehtsgeleerdheid in this wa\’ (1.2): 10.I Inman positiv e law is eitlier law common to all nations gentium) or civ il law [^/us civile). This distinction had its origin at the time when men had so increased in numher that thev could not convenientiv he subject to one common gov ernment and therefore must div ide themselves into several civil communities. 11. Law common to all nations is that which has been accepted bv the nations generallv tor the preserv ation of the communitv ot inankind. 12. This, though it is not an absolutelv essential consequence of the law of nature, closeh resembles it, and tor this reason, as well as because of its e.\- tensiv e and long-continued use, is not readilv altered. L iider this head falls the law relating to the safe-conduct of ambassadors and manv other rides concerning peace and war. 13.(nv il law is the law which is immediatelv derived from the will of the Sovereign of a civ il communirv. 14. This is either peculiar to one people, as the power of husbands over their wiv es is prettv well pecidiar to 1 lolland, or common either to all, or to most, peoples. .Ml the same, it mav be changed bv one people ev en without consent of the rest, as not concerning human .societv in general: such are the numerous laws relating to commerce and successions morri.( cuiisii. 15. Chv il law is written or unwritten. 41