NARRATOR: Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses the prominent place natural law plays in Roman Law, including: Essential relationships - and how the legal system was set up around survival The core principles that maximize social gain The kinds of social arrangements that involve legal formalities This lecture is part of a series with Professor Epstein on how this ancient legal system can provide crucial insights about modern problems. Professor Epstein is one of the most prominent legal scholars of our day. He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the University of Chicago. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Why does the notion of natural law assume such a powerful place if you start looking at the Roman doctrines? RICHARD EPSTEIN: The thing that you immediately notice is that every time you come to a really difficult question about how the legal system is going to be organized, the Romans will appeal to the notion of "ratio naturalis" or natural reason. If they're trying to explain how it is that people come to acquire property by occupation, that is by taking first possession of it, it's natural reason that justifies that. If you're trying to figure out why it is that you're allowed to use force in self-defense, again that's the kind of thing which is going to be justified by natural reason. Modernists essentially have a field day because you start looking at a term like natural reason you realize that it's essentially undefined and then immediately what you try to do is to say, "Ah ha." What we really have to do is to substitute what is called an instrumental justification for things that were treated as "ipse dixit", a Roman expression meaning "just because I say so," which makes no difference. Now the key thing to understand is they're absolutely right about the criticism. What they're wrong about is to assume when you start doing a more thorough going instrumental or utilitarian analysis of the way in which the system works, it's necessarily going to displace the results that the Romans happened to reach. That's one thing that you have to do. The second reason why natural law turns out to be so utterly important in this system is that what it does is it tries to figure out what the relationships are between ordinary persons before we have the existence of the state to create and to perfect legal rules. When you start talking about natural reason, the reason that you do so is because you do not have a sovereign, you do not have a law-giver, you do not have a divine presence who tells you exactly the way these things are to be worked. What you have to do is to kind of make it up as you go along out of whole cloth. It turns out, by the way, that they're very powerful incentives to get this right. One of the things that you always stress when you talk about the origins of Roman law is to recognize that they don't have the kind of margin of error against mistake that we have in modern society. If you were to ask the question of what's the gap between a subsistence level that people need in order to survive and to reproduce or to last the winter through, your error is very very close to the margin under systems where there's no modern technology to produce things. You start making basic mistakes on how the system is put together. These can have fatal consequences for the individuals involved. In modern society where you have relative abundance and you make a mistake, you may influence a level of GDP, you may influence the level of unemployment, but you're not going to create mass starvation with respect to the society that you have. So the Roman lawyers have an extremely powerful incentive to get this stuff right because they know how much is riding on the overall situation. What they then do is they try to figure out how it is that you justify this element. What they did is they didn't have formal proofs for this. What they did is they had three pegs on which they tried to rest the basic system. One of them was the notion that if you look across different societies, no matter what their formal organization, they're always going to be featured by certain kinds of essential relationships that survived. PUBLIUS: What was considered an “essential relationship”? RICHARD EPSTEIN: The first thing you have to do is worry about reproduction. This is not a small deal. If you don't have some kind of institution of marriage in order to allow for the propagation of the species you're not going to live very long. As a biologist will constantly tell you, to think that people maximize human happiness is a gross distortion of the way in which life works. You've got a sick child and you decide to go out dancing, you may be very happy but you're not going to have your children survive this kind of thing. What you really are trying to maximize is not only your happiness but the survival of you and of your children into the next generation. Later on this gets formalized by the work of a man named W. D. Hamilton writing about biology in 1964 who calls it the "Principle of Inclusive Fitness." Meaning, in effect by virtue of the fact that parents have 50% of their genes from each parent going to the child, they have a strong genetic overlap, which means that the cooperation is done not to protect this child as some disinterested stranger, but to protect them as half you, and half the other person of the spouse. That level of involvement means that the care that's going to be given to these children is going to be far greater than the care that would be given to the child of a total stranger. What the Roman law did and it's followed in the modern days today is you develop a distinction between those relationship that are governed by, watch the use of the word, natural love and affection on the one hand, based upon these sort of powerful genetic connections, and arms-length relationships with outsiders. The term "arms-length" is essentially used very instructively. You keep somebody who you don't know at arms length because he may have a shiv in his hand and if you don't have the distance he may decide not to trade with you but to kill you and to take everything that you start to have. Essentially that's the first kind of distinction that you start to develop. The second distinction is how do you deal with these strangers. Essentially what happens is every legal system has to deal with the question of aggression. Now why is aggression such an important topic? It's certainly in the private interest of many people to take advantage of others and to kill them. If this were done reciprocally, it turns out you would have two people at logger heads all the time. In a state of anarchy, what happens is nobody wins. If you happen to beat somebody up in round number one and he wounds you, when you face round number two against somebody who's a bit younger and healthier, you're going to go down. He's going to be injured. So what happens is the cycle of violence will start to continue. I think it's pretty clear as a matter of historical evolution, in fact, that a state of anarchy is much more dangerous than a state of tyranny because the tyrant, however abusive he may be, does have some incentive to keep his various subjects from killing one another. The great challenge of modern laws have been how do we domesticate through constitutional means the tyrant so he becomes a governor, so that the despot becomes a monarch, and so the oligarch becomes an aristocrat, and the mob essentially becomes a democracy. Put that aside for the moment, these are essentially really very very powerful stuff. What this is starts to do it says essentially that individuals have to be protected against aggression. That's the first business. PUBLIUS: Can you give a further explanation of how the growth of society relied on these relationships? RICHARD EPSTEIN: Then the second business is what they have to do is they have to be able to cooperate with one another in order to secure gains from trade. How do you work this cooperation? In order to enter into cooperation, you have to have something that you can give to somebody else in the hopes that that somebody else will have something to give to you. What the Roman law did was to postulate, as did modern theory, two basic rules. One basic rule was that every individual was the owner of his or her body. Subject to the fiduciary obligations of parents as guardians when they're below age. Which means, in effect, when it comes to my person, nobody else can entrench upon my territory, can use force against me, without my consent. I can't do the same thing to others. So that what the rules against aggression do is they create individual islands of particular security that each person has against everybody else. If that's all that you had, then essentially the economy would be every person would have to be self-sufficient at every, at all tasks that he or she wants to engage in. That's not going to work very well, even if you allow this to take place so that this cooperation between husband and wife and maybe even within an extended clan. You have to find a way outside the family to have trade and that becomes the law of contract. What you therefore do is you understand that contractors, the way in which people can swap labor, and swap goods and swap land. "How do they get these goods and land," you will start to ask? Sooner or later, not only do you have to have a principle of autonomy, but you have to have a principle for the acquisition of property, which in Roman law was called "occupadio." The first person who sat on land could claim it as his. The first person who took a chattel could claim it as his. The first person who captured an animal could claim that animal as his or hers. Then once you have clear ownership rights, they could decide to kill it and use it. Or they could decide to trade it with somebody else and to combine it. The law of contract in Roman law has all the relevant relationships. It has loan relationships, it has sale relationships, it has hire relationships, and it has agency relationships, and partnership relationships. All developed with a tremendous amount of sophistication. The basic theory that you have here is that what you're doing is you get a system of initial rights that allow for separation. Then on a selective and voluntary basis, what you do is you'll have a way for people to cooperate. The Roman law of property, tort, and contracts remains the fundamental organizational tool for every modern system today. That's the first part of this particular relationship. But there's another part. How do we know that this stuff makes sense? There are three ways to do it. A modernist would start to use game theory. The way in which you would come up with is as follows. If we have an environment in which I can use force against you and you can use force against me, this game is going to be negative sum. Meaning, whatever gains the one party gets is going to be smaller than the losses suffered by the other party. The more you repeat a negative sum game, the losses accumulate. They never start to cancel one another out. Contracts, on the other hand, only get entered into by people who gain something from the other side. So they're positive sum games. Now if each person has more by way of wealth or advantage than they had before the trade, they're in a position to either consume that wealth or use it to trade with somebody else. Essentially the early legal system anticipated the Adam Smith view that it is through the specialization that we create a division of labor within society, which markets allow us to bring together. The Romans would have never used that terminology to describe what was going on, but they well understood the principle of gain. If you go back and you read the Digest chapter 18 one by Paul, how does he describe it? He says the contract of sale is designed so that I can give you something of which I have an excess to obtain something from you of which I have a deficit. You can do the same thing for me. His language is not quite modern, but it's quite clear he understands the mutual gain principle that starts to animate this underlying system. How do we verify it apart from this game theory? There are interesting ways in which you start to do this. One is you start to see how widely spread are these particular systems. What the Romans knew, that if you were just talking about these basic relationships, do we have marriage? Do we have rules for the acquisition of property? Do we have essentially rules for exchange? Do we have rules to prevent against aggression? You will find one variation of rules everywhere across the world. There may be differences on really detailed points about what are the limits on the use of top force and self-defense and so forth, but any legal system that tried to invert these rules would essentially be one for extinction. If parents decided that they had no duty to care for their children, goodbye society. If violence were allowed and contracts were prohibited, if acquisition of land and chattels were not allowed, every system would start to fail. They tend to be universal. The second thing is in each of these systems they tend to be extremely durable over time. If you were to start looking at the evolution of Roman law over hundred year period or a thousand year period, you will constantly see tinkering at the edges, but these basic relationships will remain largely untouched. Why is that? Because if you remember the principle we have to worry about survival and preservation, which were the phrases that the ancients used, they didn't use maximization of social welfare which we use today, you deviate from these principles and you don't survive. You don't preserve anything. You go down the tubes. And they understood that well. PUBLIUS: So the Roman system mainly focused on survival? Is there another way to think about it that sounds less bleak? RICHARD EPSTEIN: One of the ways in which the natural lawyers at the time talked about this, was they said that the legal system was designed to secure human flourishing. That's a wonderful term and what it starts to mean is if you look at somebody, she's radiant and happy and in the pink of life as they say. And you look at a man and his well-defined muscles and seem to be happy and going on. It is very clear that within the natural law tradition people do not regard the difference between health and sickness as being some kind of arbitrary social convention. They regard it as basically the sign that people are or are not going to live. So the theory is you want to preserve human flourishing. Well, who's flourishing? There are two versions of the theory, one of which turns out to be unacceptable every time, which is each individual should look out only for his own human flourishing or for her own human flourishing, the rest of the world be damned. And if you do that, then what typically is going to happen is that one person is now at liberty if they can get away with it to use force against another, and so my flourishing will be your destruction and your flourishing will be my destruction and the system will come cratering down. So essentially what you have to do is you have to generalize and say that all the legal rules that you create are going to advance human flourishing across society at large. And the way in which you could put this quite niftily is to say, "If I get an improvement, I am not allowed by that particular improvement to make you worse off. So I cannot essentially take something from you by way of theft in order to make myself wealthier and you can't do it for me." The modern terms call these things “pareto improvements,” which means in effect that you would like what's going on in society if somebody's made better off and nobody's made worse off it turns out that you can refine that principle in lots of ways but the basic intuition remains very clear. If you're trying to put together a social structure, what you have to do is to have a view which protects individual rights, not because everybody's entitled to do exactly what he wants in a Hobbesian universe, but you have to do it by creating rights and correlative duties and the Romans got this point right. The basic relationship was one between strangers; it was called "rights in rem" and essentially what it meant was that you had to forebear against the use of force against me and I had to forebear against the use of force against you. That rule will work no matter whether you're dealing with a small society or a large society. The rules are extremely clear: keep your hands to yourself. Or, as I told my grandson, I said, "Brian Noah, it's wrong for you to hit." And what he did was he kicked me instead. And what you then realize is that you have to be aware of a constant evasion that takes place if you take legal rules too literally and this then becomes the basis of statutory construction, to deal with the kinds of evasions that people of even mischievous intention are likely to do and it's much more dangerous when it becomes one of malicious intent. So the system at this point essentially worked perfectly well. The Romans understood all of this and they basically got it right and their system of natural law did not mean what has been crudely been said that in the state of nature, everybody does whatever he wants to whomever he does. We're not talking about a Hobbesian state of nature; we're talking about a system of law which restrains the dangerous appetites in order to knock out the negatives and to maximize the positive. PUBLIUS: How do you “maximize the positive”? RICHARD EPSTEIN: And then the next question is just how do you secure all of this? Well, the first point is if you don't understand what the system is about, you'll never know what it is that you're trying to secure. So Gaius in a rare stroke of genius in his first chapter announces that natural law principles apply across the board. But the formalities by which these things are implemented will vary from society to society. And that position is as valid today as it was close to two thousand years ago. Now what did he mean by that? Well, it means that we have a system of marriage. Marriage is a big deal; we generally like to know when people are married and the way in which we do that is we start to have ceremony. It turns out there's no particular set of obligations of natural law which tell you how the ceremonies ought to be worked and they're different than the Jewish religion, from the Muslim religion, from the Catholic religion and so forth. Some people get married in very fancy ceremonies and other people go to the Justice of the Peace and it turns out in other legal systems you may have to have witnesses verify what's going on and so forth. As far as Gaius was concerned and the formalities by which you implement this fundamental relationship of marriage can't alter so long as you don't mess around with the essentials, which is the duty of the parents to take care of the offspring and the duty of fidelity that generally comes with that particular obligation. Because if you're out playing around with somebody else, having children by somebody else, it turns out that the ability to focus on your own offspring through legitimate marriage are going to be compromised and so that was the essential. So when it comes to contracts, you can divide them in many different ways and you will need different formalities for different kinds of contracts. The most important and solemn of these contracts in ancient times were first marriage, which we've already talked about, and then there were the transfer of capital assets of which lands and slaves were the dominant features. What the Romans did was they developed a process of formality called "mancipatio", taking by hand roughly speaking, in which these transfers could be arranged. So what you did was you had this very funny situation in which the way the texts were written it said, "Look, we're having a lawsuit and I'm claiming that this slave was mine." And then in the next clause what we're saying is, "And be he purchased to me by this transaction." If you look at the sentence, it's quite clear that there's an internal contradiction. How can you buy something if you already own it? It's kind of crazy. But the way in which early legal systems worked, they were very suspicious about the alien ability of any kind of property because they thought if you managed to dispose of property to a stranger you could undo the fiduciary obligations that you had to your spouse and to your child and so therefore, the question of whether or not contract necessarily requires a betrayal of family was a very serious problem. In the end the solution was that the property that you receive in exchange for the property that you surrender is subject to the same kind of trust obligations to the spouse and children. So if you could increase the size of the pie and continue to honor those arrangements, everything was going to be better. You can see in the original Roman text the origins beginning this thing is wholly fictional in the sense that you have a collusive lawsuit to transfer property and then people realized that, wait a second, this is not claiming something which was stolen from you or taken by you by mistake. It was a purchase, so they add in a second clause which tells you the truth. PUBLIUS: So does every arrangement require some type of ceremony to cement its legality? RICHARD EPSTEIN: If you're going to have these ceremonies for big ticket items, you don't want them for every small ticket item. So if you want to take a modern illustration, we have today a Statute of Frauds for the sale of land, which means that a contract shall not be enforceable unless it's signed in writing by both parties to be charged. Because everybody wants to know when negotiations end and when formality begin. These formalities are not restrictions of freedom of contract; they're essentially a way of avoiding litigation ex poste by taking very simple precautions for clarity in the ex ante state of the world. The Romans did exactly the same kind of thing for formal arrangements. But for ordinary things like buying a newspaper nobody wants to sign a written contract. Nobody wants to have an inspection of whether or not you really own the copy of this paper. What you do is you put your dollar on the table and you get your paper back and the Romans did exactly the same thing. For a simple informal contract you did not go through formal mechanisms of delivery; use something known as traditio, which means quite literally "to hand over" and if you hand it over over time, traditio becomes tradition in the modern way of thinking about these things. Then what you start doing as you look through various legal systems is you ask yourself, "Which kind of contracts require high levels of formality and which ones do not?" And you get the same answer then that you get today, namely that if the value is great and the durability of the transaction is long, you want written evidence. If it turns out that it's the sale of something which is likely to disintegrate within the day or to be eaten in that particular evening, formality does not matter. What's the source of the difference? If you transfer property to a third person and that party wants to mortgage the property, which you could do under Roman law, that party wants to resell it to somebody else, that party wants to lease it down to a third party, they have to be secure in the fact that the title was there. The formality essentially facilitates these exchanges. It is a very common mistake of modern people to say that formalities are opposed to freedom of contract and if you accept formalities you have to accept the minimum wage laws, something of the sort. Nothing could be further from the truth. The Roman system of formalities and the modern system of formalities are designed to expand the scope of contractual freedom by reducing the pressure in litigation ex poste by taking very simple precautions. My favorite illustration of this is the old Fram commercial and what that commercial showed was a guy who had a filter who says, "You could pay me now to put a filter in an engine so it will work or you can pay me later and have to do an engine job." I think of the contract as the Fram filter. Think of the absence of a contract in a big transaction as the engine job that you're going to have to do and you will realize that the basic Roman categories on this stuff remain to this very day. PUBLIUS: What about torts? RICHARD EPSTEIN: Here, of course, formalities are something of an absurdity. Nobody's going to say, "Well, if you want to kill somebody, you first have to send them notice signed in writing that you're about to kill them." Well, we know in effect in that particular situation we're trying to stop the behavior and we may well require various kinds of permits and licenses so that you can hold firearms or something of the sort. Essentially formalities are not the way you deal with force. What you have to do is either allow self-defense when there is no central authority or develop a central authority to start to deal with force and then you have to be aware of all the subtle variations upon force because even if the majority of society is filled with decent and honorable people, that small minority that wants to do you in can destabilize the whole situation. That was the great force of the Hobbesian observation. It turns out if you've got 99.9% cooperation and . 01% non-cooperation and aggression, the whole system could come tumbling down unless you could control the outlier from that form of aggression. So the Roman lawyers got it right. They got the right substantive rights, they got them more or less for the right reasons and they understood the local variations that would take place either on low probability points of detail or in the way in which formal systems were to be put into airing. Then as you start going through both Roman solutions and modern problems, you realize that this particular framework carries over without so much as a hitch, no matter what the problem you're dealing with and no matter whether you're dealing with in Roman times, early English times, colonial times or modern time; the system was built to last. NARRATOR: Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for more lectures and videos on Property, Contracts, and the Common Law. Thanks for listening. See you in class!