Long Live the Hatred of Roman Law!

28 Pages Posted: 28 Feb 2003

Abstract

Perhaps understandably, legal historians have preferred to forget the long history of the hatred of Roman law. It is a topic that has painful associations with the Nazis, who denounced the supposed link between Roman law and the "materialistic world order." It is also a topic that seems particularly out of place in the current world of European legal politics, in which the future of Roman law in the European order seems to depend on demonstrating the cosmopolitan appeal of the Roman texts. Nevertheless, the topic cannot be allowed to die. Roman law has been dogged by anxiety and hatred for many centuries, for reasons that deserve sustained attention in our scholarship, and that are of real public importance. Even the association between Roman law and the "materialistic world order" - an association made not only by the Nazis but also by Marxists, and indeed by observers well back into the Middle Ages - deserves serious discussion. This essay argues that the best way to understand the history of these hatreds is to return to the defenses of Roman law offered by Schulz and Kaser in the 1930s, who focused on the striking omission of mores from the Roman texts. The resulting narrowness of the legal texts made them seem dangerous and immoral for many centuries. Indeed, anxieties about the apparently "immoral" narrowness of the Roman texts dates back to the Middle Republic, and the same sorts of anxieties underlie many denunciations of western law to this day.

Suggested Citation

Whitman, James Q., Long Live the Hatred of Roman Law!. Yale Law School, Public Law Working Paper No. 36. Available at SSRN: https://ssrn.com/abstract=383761 or http://dx.doi.org/10.2139/ssrn.383761

James Q. Whitman (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-8932 (Phone)
203-432-4177 (Fax)

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