NARRATOR: Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses: How the Roman legal system developed and adapted from Republic to Empire to Expansion The difference public and private law in the Roman System Common law vs. statutes in the Roman System 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: Rome went through some pretty big historical changes, like becoming an empire. How did that affect the legal system? RICHARD EPSTEIN: What happens is when you're trying to figure out the way in which Roman law evolved, its a very long period of time. And probably the single most important break is the end of the Republic after the death of Caesar and the rise of Augustus, which spanned basically just before and just after the birth of Christ. And how does this influence things? The answers is, there are two ways you can look at this. One of them is a public law matter and the other is a private law matter. If you're dealing with the public law matter, the changes are very large. A Roman Republic is res publica. It means that those affairs ... res can either mean a tangible thing or a set of social affairs, which belong to the public should be decided by the public as a large. And so you see a very large role that's given to two classes, one the Senate, which is a term we use for our upper house to this day, and then to the publicians, which becomes the House of Representatives. The theory was representing different individual groups in slightly different ways, there would be a clash in the set of checks and balances between these two parties so that you could be reasonably confident that no one person could take charge. In addition, much of Rome was governed by two councils, not one. So what you did is one executive could give a check against the other and what you saw was a political system which obviously would have many weaknesses in practice, but at least was alert to the dangers of arbitrary power. When you get to the Empire, all that starts to disappear and you get the maxim about “quod principi placuit legis habet” - one big cheese can call the shots. And so Roman public law ceases to be a very interesting subject in that the only thing that it deals with is the use of arbitrary power. Therefore, when you do Roman law in the way in which I'm talking about it, constitutional history is done by one group of scholars who are essentially Roman historians, and Roman private law is done by another group of scholars who are essentially lawyers. I've attended many a meeting with classicists and their knowledge of Roman law on the private side is relatively weak because they're not fully trained in the legal system. My knowledge of Roman history is relatively weak so it turns out that I can't tell you whether this particular Emperor went to the left or went to the right, this one was honest, this one was corrupt and so forth. So they're perfectly sensible complementary subjects. When it comes to the private law, the continuity across the Republican and the Empire is almost complete. If you go back and you start to read Gaius and so forth, what he does is he basically identifies two classes of scholars who differ from one another: the Sabians and the Procleans, one of them being more concerned with substance and the other being more concerned with form as a way of organizing a situation. So what he then does is he presents essentially 20 or 30 disputes between the two schools on how it is these scholars would resolve a problem. The first thing you realize when you see a school dispute is if this thing has not been resolved authoritatively, it means that it's probably a very low probability event of occurrence and that's the academic predilection to take the hard problem that never occurs instead of the routine problem that occurs every day. Lawyers should be forgiven that, but when any lawyer is representing a client they don't want you to tell them how to deal with a complicated case or their recordation system gets messed up and you don't know what priorities are. They want you to be able to put together a system where the title doesn't get messed up so they don't have to spend a fortune to sort these particular cases out. That was also true in Roman time. These guys, Proculus and Sybinius, are Republican figures. And what they do is all of this stuff starts to carry over and it's elaborated in that particular time. If you're trying to figure out what's going on, there's always a natural evolution over time between these periods which Gaius has pretty scrupulously talked about. Roughly by the time you get to Gaius and certainly a little bit after, many of the formal distinctions between different types of contracts tend to erode relative to what they were in earlier periods. It is a common feature in early legal systems which are insecure of themselves and have an excess of formality. Then as systems become more self confident to soften it a little bit, not absolutely, but at least a little bit and you start to see that. But essentially what happens is when you do Roman private law, you spend some time on the evolution of legal documents but you don't pinpoint or tie it to the political changes in the larger system. My late colleague at the University of Chicago and my tutor in Property Law at Oxford back in 1965, Brian Simpson, was a great legal historian. What he constantly reminded me of even as a student is if you're seeing a really complicated evolution of some private document, whether in early Roman law or early common law, first think about the way the system was put together internally, ignoring all these large political issues. Only if there's pretty good evidence of a large political struggle, would you bring it back to talk about the particular case. And that's generally speaking a pretty wise piece of advice. You can obviously find cases where private law issues become public law issues. For example, in the Coke Ellesmere dispute that took place in about 1616, the Courts of Equity were associated with royal power, the common law courts were opposed to it and in effect when there were dangers of the Crown overreaching the difference between these two legal systems was not just a question of whether you get damages or injunction in a private lawsuit; it was a question as to whether or not when you looked at this thing, one party was going to be in control over the other. Certainly though, it's harder to isolate these events. In Roman law, you would definitely get these kinds of political struggles that occurred there as well. In the materials that I tend to teach dealing with persons, property, contracts and torts, there's almost never a hint of anything of that sort in these things. The private stuff tends to dominate and this public overlay tends to be put to one side. If I were a constitutional historian of some form or another, I think I could find cases where it deviated. I will let the historians present it to me. But if you try to teach Roman private law to individuals and you know that 99% of it is going to be based upon ordinary private law principle, which include the interpretation of statutes that supplement and vary the common law, rules that are made by judge, you don't want to get into high politics too soon. You'll want to put it off until an appropriate occasion takes place. And so the continuity between the time of the twelve tables and the time of Justinian of 1,000 years on the private law subject is increasing sophistication. And they're major statutes. But again, the lex Aquilia, which is thought to be the single most important statute on the law of torts, is adopted roughly around 287 B.C. early in the Republic and they're construing it for all it's worth 400 years later. Obviously, the change between the Republic and the Empire does not have much to do with what's going on in that very difficult statutory construction. PUBLIUS: So the legal system primarily dealt with private, rather than public law? How would the Romans have defined “the rule of law”? RICHARD EPSTEIN: When you start looking at the public and the private law sessions, one of the things that you're always going to ask is, "How does this resonate with respect to a modern theme,” which is sounded in Hayek, John Locke, James Madison, and to which every working politician today has an instantaneous appeal, which is the rule of law?" And the answer is if you're going back to earlier times, the rule of law was not very much on the table as a legal doctrine because the principle of absolute authority meant that the Emperor can do what he wants. That meant that he can do it by way of general command or do it by way of particular order. So the usual requirements of the rule of law that there be general principles known in advance, understandable by the public, administered by a group of individuals free of bias and prejudice, allowing all parties to be heard, was understood in Roman law. In fact, one of the nice things about it is that the major maxims that you have in here, “nemo judex in causa sua,” nobody should be a judge in his own cause, or “audi alteram partem,” or always hear the other side, are in Latin. If you did administrative law under the English side, they would call these principles the natural law tying back to our earlier discussion. In the American area, we tend to call them principles of due process based upon the due process clauses that are found in both the 14th and the 5th Amendment: Nor shall any person be deprived of life, liberty or property without due processes of law binding both the federal to the 5th Amendment and the states under the 14th Amendment. So they certainly had these principles out there but they could always be trumped by somebody else. And indeed they are extremely valuable principles because if you do not have principles of procedural due process, the substance of rules will not survive. So this is a way in which to think about the issue. If you have an impartial presentation of the evidence, then the case would come out 50/50. But if you've got a biased set of rules, it's gonna be coming out 2:1 on one side. So what does this mean? Think of this as a dice. So if it's 50/50 and you flip it, it's gonna be either 1, 2 or 3 on one side, 4, 5 or 6 the other. But if it turns out you're talking 2:1, now it's 1 or 2 on one side, 3, 4, 5 or 6. Essentially what happens is one of those little pips goes over to the other side. That's roughly like taking 1/6 the property of one party and giving it to the other party. The great the skew, the greater the amount of transfer. So everybody who's ever dealt with procedural due process knows that bias becomes a way in which you can transfer wealth from one party to another by changing the odds of deliberation coming out correctly from the true estimate to this cooked up estimate. How does that differ from a substantive command that says, "Thou shalt not take 1/6 of the property of somebody else in litigation." So substantive due process and procedural due process sound in any legal system as though they are disparate and separate, but when you push at the Roman rules which survive to this very day, on this thing it becomes clear that there's an intimate connection as between the two of these things. PUBLIUS: If we’re talking about the odds being stacked in favor of someone, in the Roman world the Emperor seems like the most likely person to get the benefit of that. How did that affect public and private legal arrangements? RICHARD EPSTEIN: So therefore, this particular point of public law adjudication, how does it get placed in the Roman law system? The way in which we deal with this as a Romanist or any Modernist is we create what are known as default presumptions. What does that mean? Well, it means that the Emperor can do anything and he or she darn well pleases at any particular time, but if it turns out that the Emperor is silent on a particular issue, then we will assume that the Emperor has agreed to be bound by the principles of natural law because as a great and benevolent leader who's concerned only with the welfare of his people, perhaps a fiction, but perhaps not. These are the rules that he would adopt. You then put these rules into place as a matter of practice, and the strategy that you try to develop is to keep them in place enough time, so that it becomes extremely awkward and very difficult for the empire to start to change these things. If he tries to do it as a general matter, the public is going to lose confidence in the way in which he's going, and if he tries to do it in a particular case, it looks as though it's now arbitrary and capricious action, and so if you have the default terms correctly set, you try to make them sticky, to use the modern terms, and so therefore they start to bind. This technique is still used to this very same day in modern times of connection with property rights. The biggest question that you often have is the same one you talked about with provincial lands, is you've got aboriginal people, whether it be in Australia, Hawaii, New Zealand, South Africa, and so forth, who seem to enjoy a series of possessory rights. Then the question is even if the crown has the absolute power or the government to remove them, did they exercise that power? Because if not, then the judges are going to assume that the natural law principles of first possession, coupled with the various rules on fairness, being right to be heard before an impartial judge, govern the case, so they could start to stabilize it. So, there is this very, very powerful influence of these Roman law principles, and note, these are procedural principles and not substantive principles at the time. But then they get tied up with the substantive positions, because the Roman rule maxim of prior in time is higher in right essentially will favor incumbents, i.e. aboriginal and native peoples, over the newcomers coming in there. Which now creates a genuine kind of tension, and how you get rid of it is very interesting. One of the things that was done, for example in John Locke, he gets very obscure on this issue, and it turns out that you acquire possession of an acorn the moment you pick it. You acquire possession of the land the moment you cultivate it, maybe. There's obviously very inconsistent conceptions. Why does he do that? Because if you require cultivation, and you have a series of Indian tribes who are hunter-gatherers, then their possession doesn't count. So, what you do is you take an ostensible neutral principle of property law, and you turn it into a political tool, which is one of the things that I mentioned happened too. And it turns out that Locke is wrong on the land. Occupadio, which is the Roman conception, just means that you've marked it off from anybody else. It doesn't require a labor in the land in order to complete title. If you go back and you look at Locke in the fifth chapter of Our Property and The Second Treatise on Government, the word occupadio never occurs in that particular chapter. Which means that he's bollocksed the Roman law and the English Common Law, and has done so in a way with a labor theory of value which makes him sound sometimes like a Libertarian and sometimes like an early precursor of Karl Marx. You put the word occupadio back in place, meaning it's just a demarcation, and the whole system completely turns over and there is not a slightest hint of Marxism in the Common Law or in the Roman law, and there are all sorts of ways in which you could easily and sensibly read it into John Locke. If a guy doesn't get something right, it turns out if he's that influential, the error will span, at this particular point, three centuries plus. PUBLIUS: Can you talk a bit more about how the Roman legal system adapted for governance as the Empire expanded? RICHARD EPSTEIN: Okay. I've already talked a bit about the temporal element in dealing with these systems, starting with the republic and moving forward, roughly speaking to the empire, but there's another transition of equal importance in that transition, which is what happens when you start to leave native Rome on the one hand, and start to acquire by conquest properties elsewhere. This presents very serious problems of judicial and legal administration for the state, and essentially, unless you have a moral-less, honest system of taxation and governance, you cannot rule for a very long period of time. You will face massive insurrection, some of which will turn out to be successful, and the others which will leave you slowly to death, which is what happened towards the end of the Roman empire. So how will we start to deal with this and one of the problems I've already discussed, which is, when you're trying to figure out who owns land when the emperor and the people have title, what do you have to do is to create some kind of substructure of land, which will allow indigenous people to continue to live in their own territories and to trade land with one another and so forth. The farm and so on, and for that, what you have to do is to treat your titles a bit aloof. This is not all that different from the situation that happens under feudalism, where when we, the conquer come to England, there are lots of local people around and what he decides to do is to create a feudal system, in which in order to prop themselves up, that solves them, what he does is he enfear us, or conveys land to his various henchmen, who take large chunks of land and then owe him obligation and they do the same thing to people coming down. In the early stages in both the Roman and the English system and even today, when you're dealing with, say a Chinese system, which doesn't recognize private party. Trying to figure out how to separate sovereignty from property becomes a sinful challenge. To create the subordinate set of rights, sooner or later, what you have to do is to make the distinction. Ironclad have sovereignty be perfectly consistent with property rise, and then you have a system of regulation which explicitly asks when you can regulate, when you can tax, when you can confiscate through eminent domain powers and so forth, but that lies pretty much in the future from this system, and what we don't know about Roman law is how this thing actually played out in different territories. Augites gives you about 10 lines on the whole subject. There's nothing whatsoever about this by the time you get to Justinian, because the provincial gap between the original Romanist and the territories was ended when everyone became a Roman citizen several hundred years before Justinian work. The theory was that we're gonna protect our empire, and we have second class people resolving and it's not going to work very well, so in an effort to get support, they expand the citizenship accordingly. So that's one area. The second area, which a great important, is what do you do with commercial transaction. Commercial transaction is generally a non-transactions and land. The trading relationships of spices from one location to finish product in another location. And the dominating contract that one has to deal with in these cases turns out to be sale, and if you're dealing with sales, than distance, they tend to be very simple transactions in the sense that I give you complete ownership of this particular thing and you give me a prize. Since we're gonna be 4,000 miles apart, or 200 miles apart when it all ends, the idea that I sell you something with some residual rights in the thing that I sold doesn't make any sense. If I lease property to you, I may want to restrict the way on which you could use it because I've got nearby property and I have the right to get this property back afterwards, and if you can do whatever you want with the properties, it's gonna prejudice me so that those relationships are not what we call clean deals, those relationships have constantly continued in obligation. When you start dealing with clean deals among strangers. What you realize is that every people has its own kind of formalities with respect to these transaction. They can be a stipulation. "I hereby agree to sell you this for X price." And the other guy says, "I hereby agree to bond." But the other fellow don't know from this particular situation particularly well. They have their own formulas. Maybe you need witnesses, maybe you need writings or some sort or another. So the tendency is to just eliminate all the formalities that they've created about all these systems, so by the time you get to the formulation in guise, essentially sale is listed as the first and probably most important of the consensual promises, a contract, and the only thing that it requires is an agreement between the two parties about the thing to be sold and the price to be paid, and then you have the fill in the rest of the gaps by implied terms, deforce provisions, and so forth, and that was the way the world was organized. PUBLIUS: Was there a large role for the common law or was everything governed by individual statutes? RICHARD EPSTEIN: One of the question that you see in Roman law, If you look through guides and to some extent, Justinian as well, is that they are not pure common law subject. What they do is they give a common law and then they say, "by the wise decision of the empire, this particular rule has been buried by a statue on this particular point." And I would say, "By the time your done with this, there may be as many as 10 or 20 or 30 different statues that can influence the law of contract, and the Lex Aquilia is a big statue which influences the law of torts and there are fewer statues in the property area but nonetheless there are some there. So the question is, what do you do to integrate the statues with the common law rule? And one of the things that you understand about all of this is just how difficult statutory interpretation turns out to be, and how it is that when your doing this, this modern conceit of originalism is textualism does not get particularly confirmed when you start looking at Roman text and seeing the way in which they are read. Let me first start with the simple example and then with a more difficult example, which we'll go into later. On the simple example, one class of Roman contracts has to do with guarantees. On the Roman law, if somebody makes a promise to deliver property, when to pay money, another person come along and agree to pay money if the primary debtor does not pay or does not deliver the property. These guarantees can take two different forms. One in of them is a very strict set of terms, knows as the “fideo usur” relationship, and the other is either a “sponsor” or “fideo promisor” with the obligations on the third parties are a little bit less stringent, and in Gaius, whether these distinctions are still alive, he develops a fair amount of space in a whole page or a half, which is a lot in his book, talking about this and all the particular statutes that start to apply. He's very sophisticated on it and one of the statutes he wants to do is the question of whether or not you can impose limits on the amount of guarantees. As my friend Daubert told me 60 years ago. He said ”amicitia” in Roman law, is a very dangerous and powerful subject. What does it mean? It means that Roman have very strong obligations in friendship which makes it rather important for them. Not to say no when somebody worthless asks them as a person that means and substance to Guarantee a particular ventric. This Guarantee problem continues to arise today. Why do we need Guarantee contracts? If it turns out that the primary obligor, the primary person that owes the money is a little bit dicey, then you get somebody else who wants him. Two things happen, one is he will now exert pressure on the original debtees, so it will increase the probability that it will be paid off, and second, you will ease the anxiety of the lender by knowing he can turn to a Guarantee or guarantors plural in order to get relieve if it turns out that the primary debtor does not work. This area of law is extremely complicated both then and now, because there's nothing which says you can only have one Guarantee , you could have multiple guarantors, so now you have to sort out the relationships amongst the guarantors with each other, and collectively and individually with the original debtor when there is none payment or, in some cases, variation of the original payment. This is a full time business and so forth. So amicitia means that people are likely to promise more than they want, and so what the Roman statues do is they say, "Well you can only Guarantee so much money and anything above that amount is going to be void, is going to be void." So it's a protective statue, and the word they use is precuneus which means money, but it turns out that the same problem arises when the original obligation is not for the transfer of money, but for the transfer of some particular scene, and so you look at the statue and Gaius says it's a perfect matter of course. The word money in this statue means money in any tangible object of value. So money is not only read in oppositions to these things and now it's read the same way. This is, of course, not textualism, it's not literalism. So why is it being developed? And the basic intuition that you can feed back into it, is that you ask yourself whether the dynamics of “amicitia” are different if somebody promises to convey a thing, or promises to pay money. And you'd be very hard pressed to find a reason why the social dynamics work differently in the two cases, so that what happens is, that when some guys starts to plead, the limits on the Guarantee in a case where the obligation is non-pecuniary, the professors are looking at this stuff and saying, "It's the same thing for us." So now what you do is you introduce the phrase, " For the purpose of this particular statue, the word money means something else." And the words for the purpose are always a sign that you're paying a little but fast and loose. And so the question then is, is this fast and loose a good thing? Or is it a bad thing? And if it turns out that you're turning the statue upside-down in some fundamental way, it's probably a bad thing, but if you're extending it to similar situations, it's probably gonna be a good thing. Which means, that now you really have to know a lot about the particular statue than its organization before you can actually do the thing correctly. Going through all these Roman statues you realize that the constant tension that you see in modern law between text, history, structure, and purpose carries over in these legal systems, and there's no single dominant solution. If there were a dominant solution, this problem would have been solved a long time ago, but I actually was curious enough about this in this past year, I taught a course on statutory interpretation in the modern style, and the single biggest mistake in the particular field was that none of these guys knew the first thing about the Roman law principles of implication, and so they get everything, it turns out, wrong in a rather fundamental way. So let me take another kind of principle, which deals both with statues and not, and the principle is you have a particular obligation under a statues to do X, but what happens is there's a kind of an emergency or a necessity which make it impossible for you to disgorge this particular form of duty, and so what happens under Roman law is they develop a maxim, both with property and statutory obligation. It says, "You are excused from performance of these obligations, if it turns out that they arise in the conditions of necessity." Why do they do that? Because if there's a necessity we don't really worry about the risk of willful breach or self aggrandizement. It just turns out, for the most part, he can do this. Now why do you want to sue somebody for money if he can do it? And if it turns that the relationship goes the other way, you can say, "Generally speaking, if we have an excuse in cases of necessity, we're gonna be better off." That becomes the principle of impossibility. It's just everywhere inside the law. There's a famous modern piece called “The Speluncean Explorers”, by Lon L. Fuller, one of the great minds of the 20th century, and what he does is he talks about a statue which has some very stringent obligation. The question is whether or not there's going to be any excuse in this particular case, and since these are a bunch of people who are stranded in a cave, right? Their live and death depends upon... it's a necessity case, and he gives the textural fuse, and he gives the living his constitutional fuse, and so forth, but in the five to six opinions that he manages to talk about in great length, never once does he actually come on the correct answer, which was the Roman answer. Under circumstances of this, literalism does not apply, and we excuse performance under conditions of necessity. Note this is not a form of living constitutionalism, or statutory dynamism of one form or another. This is an argument which makes perfectly good sense in static times, everybody wants to adopt it, and so there you see it. It gets even more complicated but I won't talk about it now. When you start it with more complicated statutes like the Lex Alquilia, where it turns out that the modifications that take place are extremely great and, as I've written in an article in 1992, they explain the way in which you should think of modern constitutional interpretation. That is the common law rules that allow you to figure out what's going on with simple statutory obligations, give you a very strong insight to where inn which you interpret constitutional commands, dealing with the freedom of this, like religion or speech, or in the alternative, with such things as the parent obligation of contract the taking of property of reasonable searches and seizures and the major mistakes in modern American constitutional law come from the fact that all the judges who are deciding these case and most of the commentators who are right about are utterly ignorant of the tradition of statutory interpretation, that starts in the Roman period, gets carried over into the English period and medieval times and at least in the early period of American statutory interpretation was well understood. This supplies whether you're talking about people like Antonin Scalia on the right, or Bill Eskridge on the left, a professor on some note. Most of them, oddly enough, make the same kind of mistakes. 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!