A recurrent subject of Peter Stein’s writings has been the development of legal reasoning from the Roman world to the modem.[117]
This paper, offered as a mark of gratitude and respect to a teacher who led many a fledgeling law student on the path towards an understanding of what legal thinking is about, takes as its subject one of the problems of definition in law, the tension set up when the legal definition of an institution gets too far removed from its popular conception.
‘Omnis definiti© in iure civili periculosa est; parum est enim ut non subvert! potest.’[118] Nowhere is this warning more necessary than in the law of wrongs, whether it be the Romans’ law of delict or the English law of crimes, for it is here that the legal definition is most strongly (and continually) brought up against the popular perception of wrongful conduct.Sometimes the problem is simply one of language. The legal definition of rape in English law, for example, is non-consensual intercourse with a woman by a man who knows that there is a risk that she may not be consenting or who is indifferent to whether or not she is consenting;[119] English language, though, has no word in common usage to denote non-consensual sexual intercourse in circumstances where the man did
genuinely believe that the woman was consenting.[120] In popular parlance such a situation is rape; in law it is not.
Sometimes a problem can be caused when the overlay of the legal definition on the popular conception is close but not exact. The offence of burglary is defined (inter alia) as theft committed by a person who has entered a building as a trespasser,[121] a definition fairly close to the popular usage of the word.
But what if property is stolen by a person who has a general permission to enter? In Jones and Smith[122] it was argued that such a person (in this case the son of the family, who had entered his parents’ home with an accomplice in the dead of night and stolen their television set) could not in law be a trespasser and hence could not be guilty of burglary.[123] The legal point is difficult, yet his conduct in breaking into a house at night and stealing clearly fell four-square within the ordinary conception of burglary: that, presumably, was why he was charged with burglary rather than simply with theft, of which he was clearly guilty. When faced with such potentially inconvenient results flowing from the use of technical legal terms, the courts have a propensity to avoid them by asserting that civil law concepts should have no part to play in the criminal law;[124] but it may be more accurate to see the conflict not so much as between criminal law and civil law as between technical legal definitions and untechnical popular conceptions.Sometimes, however, there can develop a more substantial disjunction between a legal definition of a wrong and its underlying conception. This is peculiarly marked in the case of theft, where both classical Roman law and modern English law reveal a very broad approach to the construction of legal liability. In both systems the original notion of theft involves a removal of another’s property;[125] in both systems the physical act of theft comes to be defined as no more than an interference with another’s property, a contrectatio in Roman law, an ‘appropriation’ in English law; but, in opposition to this definition, in both systems the idea of taking remains at the heart of the conception of theft. In Roman law the distinction between the two levels remained more or less visible, for while the physical act required ground liability for furtum was a simple contrectatio, the mental state of the wrongdoer could be specified as an animus furandi,[126] an intention to steal, which clearly involved more than an intention to handle. In English law the distinction is less easily visible, for the mental element, the mens rea, is more precisely defined as ‘an intention permanently to deprive’ the other of his property; in consequence there is no place for a general ‘intention to steal’ and no idea of stealing clearly distinct from the idea of appropriating.