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

24 Pages Posted: 2 Oct 2009 Last revised: 30 Nov 2009

See all articles by Péter Cserne

Péter Cserne

University of Northumbria at Newcastle - School of Law; Tilburg Law and Economics Center (TILEC) ; Università degli Studi di Genova - Tarello Institute for Legal Philosophy

Gergely Deli

University of Györ - Department of Legal History

Date Written: November 1, 2009

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.

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

JEL Classification: K00, K12, K40

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: https://ssrn.com/abstract=1480685 or http://dx.doi.org/10.2139/ssrn.1480685

Péter Cserne (Contact Author)

University of Northumbria at Newcastle - School of Law ( email )

Ellison Place 2
Newcastle upon Tyne, North East NE1 8ST
United Kingdom

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Università degli Studi di Genova - Tarello Institute for Legal Philosophy ( email )

Via Balbi 30/18
Genoa, 16126
Italy

Gergely Deli

University of Györ - Department of Legal History ( email )

Egyetem tér 1.
Györ, 9026
Hungary

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