tion of authority of law (in more than one sense) from the authority of the rationale is alive and well in America. For this introduction I have one further example of bizarrerie. Justinian’s Digest .., concerned with the contract of sale reads: The issue is significant both socially and legally. At Rome each contract was specifically defined, and actions, formulae, were designed for each contract. If sale and barter were the same contract, then the formulae for sale were those appropriate to barter. Sale was a welldeveloped contract, barter surprisingly was not. The Sabinians wanted to extend the benefits of the contract of sale to barter. But they needed a rationale. Usefulness could not be adduced; such was not the jurists’ way.10 But they had no legal authority. So they chose to use a text from Homer11 on the argument that it shows sale and barter being treated as the same arrangement. Homer was no authority for Roman law, and the Sabinians had too much sense And today it is a matter for doubt whether one can talk of sale when no money passes, as when I give an outer garment to receive a tunic; Sabinus and Cassius hold such an exchange to be a sale, but Nerva and Proculus maintain that it is barter, not sale. Sabinus invokes as authority Homer who, in the lines which follow, relates that the army of the Greeks bought wine with copper, iron, and slaves: “Then the long-haired Achaeans bought themselves wine, some with money ( αλκ ), others with splendorous iron, ox-hides, oxen themselves, or slaves.” These lines, however, suggest barter not purchase, as also do the following: “And now Jupiter, son of Saturn, so deranged the mind of Glaucus that he exchanged his armor with Diomedes, son of Tydeus.” Sabinus would have found more support for his view in which this poet says elsewhere: “They bought with their possessions.” Still the view of Nerva and Proculus is the sounder one; for it is one thing to sell, another to buy; one person again is vendor and the other, purchaser; and, in the same way, the price is one thing, the object of sale, another; but, in exchange, one cannot discern which part is vendor and which purchaser. 10 See, e.g. Alan Watson, and Khaled Abu El Fadl, ‘Fox Hunting, Pheasant Shooting, and Comparative Law,’ 48American Journal of Comparative Law(2000), pp. 1ff. at p. 20. 11 Iliad, 7.472 ff.
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