This subject is an introduction to legal concepts and legal thought, which for centuries have been directly influenced by Roman law. The course therefore shows where many of the ideas which we take for granted have come from. The course is based on primary materials, the set texts from Gaius (second century AD) and Justinian (sixth century AD). The texts are studied in translation. No Latin is needed, nor is Latin an advantage. Contact with primary materials is one of the great merits of the study of law. It allows the mind to form its own judgments, freed from second-hand opinions.
The course has five sections: I. Sources of Law and the Scheme of the Institutes; II. Property; III. Obligations (A) Contract, (B) Delict (Tort); IV. Influence of Roman Law.
There are lecture courses on each section: on sections I and IV at the beginning of Michaelmas Term and the end of Hilary Term; on section III(A) in Michaelmas Term; and on sections II and III(B) in Hilary Term. There are also tutorials arranged by your college tutor. Within this structure, it is possible to introduce most of the principal concepts and distinctions which are still of importance in modern law. The two great categories, property and obligations, comprehend most of the private law encountered in ordinary life and legal practice. The first and last sections provide an opportunity to see how enormously influential the Institutes and the Digest have been in the western legal tradition and introduce, from a comparative perspective, the principal kinds of law-making, namely legislation and interpretation.
(i) The structure of the Institutes, to be studied in connection with Gaius, Institutes I.8; II.1-2 and 12-14; III.88 and 91 and Justinian, Institutes I.1; II.1 pr.; II.2; and III.13. Sources of Roman Law, to be studied in connection with Gaius, Institutes I.1-7 and Justinian, Institutes I.2.
(ii) Property to be studied in connection with Gaius, Institutes II. 1-33, 40-51, 65-79, and Justinian, Institutes II. 1-6.
(iii) Contract (but not quasi contract) to be studied in connection with Gaius, Institutes III. 88-162 (omitting 94-127, 151-154b, 157-160), and Justinian, Institutes III. 13-26 (omitting 15.2-7, 16-20, 23.4-5, 25.4-8, 26.7, 26.9-12).
(iv) Delict (but not quasi-delict), to be studied in connection with Gaius, Institutes III. 182-225, Justinian, Institutes IV. 1-4;
(v) Influence of Roman Law: an assessment of the dissemination and impact of classical Roman Law, especially the institutional scheme, on the European ius commune, the English common law, and the French and German codification movements. Candidates will be required to answer questions on the prescribed texts from the Institutes of Gaius and Justinian in an English translation, based on that by T.L. Mears.
The following convention is intended to explain and in some important ways to restrict the subject as defined above.
Structure of the Institutes & Influence of Roman Law Questions on the arrangement of the Institutes will expect candidates to be aware of the fact that modern codes and overview literature all to a greater or less extent embody the institutional scheme.
Candidates will be expected to have some knowledge of the codification movement, sufficient to allow them to understand that codification, although the best known feature of modern civilian systems, was not previously characteristic of Roman Law and that the reputation of Roman law for “system” long rested solely on the Institutes. However, questions will not be asked which require knowledge of the detail of the modern codes. One of the most important things an introductory Roman Law course can do is to lay out the civilian overview of the law and allow this to serve as a reference point for the organisation of later law, whether modern civilian or common law.
The course therefore aims to provide an early introduction to comparative methodologies. Tutors may, at their discretion, wish to highlight comparisons between the institutions and doctrines of Roman law and English law.
Contract The teaching will illustrate the tension between the law of contract as the law of a list of deals and the law of contract as the law of a single general principle. To that theme can conveniently be attached the consideration of writing and other formalities. Questions will be asked on the emergence in Roman law of a list of nominate contracts rather than a general law of contract, on the definition of the figures in that list and their fourfold classification, on the extent to which the gaps between them were filled, on the role of writing and other formalities, and on the difference between contracts tried according to “strict law” and those tried according to the standard of good faith.
Questions will not be asked directly on other aspects of the law of contract; hence not on implied terms, vitiating factors, or measure of damages. In relation to the distinction between strict law and good faith candidates should nonetheless be able to illustrate the role of good faith in the generation of implied obligations.
Quasi-Contract and Quasi-Delict No texts are set on these topics and questions will not be asked directly on them. In answering questions on the structure of the Institutes in general and of the law of obligations in particular candidates should know of the existence of and be able to take account of these categories.
Meaning of “questions will not be asked” Where these conventions say that questions will not be asked, they mean to exclude all forms of question, whether of the essay, problem or gobbet kind.
Form of the Examination Subject to anything that may be said in the Moderators’ edict, candidates will be required to answer four questions in three hours and will be required to answer one question, and one question only, of the kind which asks for comment on extracts from the set texts (gobbet questions). Candidates will be given a choice from two such questions; each of which will require comment on two extracts from a choice of four.
Learning outcomes An understanding of legal concepts and thinking, and of the comparative methodologies of common and civilian law.