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Law and Morality in the Regulation of Contracts: Lessons from Ancient Rome


Péter Cserne


University of Hull; Tilburg Law and Economics Center (TILEC)

Gergely Deli


University of Györ - Department of Legal History

November 1, 2009

TILEC Discussion Paper No. 2009-037

Abstract:     
The way we nowadays think about “immoral” contracts is based on a number of assumptions. One of these assumptions concerns the relative isolation of law and extra-legal standards. This view, however, is not new or even modern: to a large extent, it can be traced back to Roman law that has been both praised and condemned for this relative separation.

In this paper we venture into the problematic of “immoral” transactions by combining historical, doctrinal and economic analysis. Focusing on cases and doctrines in ancient Roman law, our goal is to show how Roman lawyers found reasonable answers to issues which, in spite of obvious differences in economic and cultural context, can teach some lessons for our modern understanding of contract regulation.

After a brief overview of economic analyses of law and morality and some methodological problems of the economic analysis of legal history, we turn to the historical dynamics of the Roman doctrine of immoral contracts. We reconstruct how and why the term immorality (contra bones mores) became a general clause of Roman law in a relatively short time; discuss what kind of cases were solved with reference to this clause; and analyse how this clause shows the practical rationality of Roman lawyers. Finally, we raise some substantive and methodological points where this historical case can provide insights for the economic analysis of the interactions of law and morality.

Number of Pages in PDF File: 24

Keywords: ancient law, contract regulation, social norms, Roman law

JEL Classification: K00, K12, K40

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Date posted: October 2, 2009 ; Last revised: November 30, 2009

Suggested Citation

Cserne, Péter and Deli, Gergely, Law and Morality in the Regulation of Contracts: Lessons from Ancient Rome (November 1, 2009). TILEC Discussion Paper No. 2009-037. Available at SSRN: http://ssrn.com/abstract=1480685 or http://dx.doi.org/10.2139/ssrn.1480685

Contact Information

Péter Cserne (Contact Author)
University of Hull ( email )
University of Hull Law School
Cottingham Road
Hull, HU6 7RX
United Kingdom
HOME PAGE: http://www2.hull.ac.uk/fass/law/staff/cserne_p.aspx
Tilburg Law and Economics Center (TILEC) ( email )
Warandelaan 2
Tilburg, 5000 LE
Netherlands
Gergely Deli
University of Györ - Department of Legal History ( email )
Egyetem tér 1.
Györ, 9026
Hungary
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