1. Roman Law in Legal Practice*

Three times the laws of the world were dictated by Rome, three times it bound the nations together in unity: first when the Roman people still stood in the fullness of their power, the unity of the State; secondly after the fall of that state, the unity of the Church; thirdly as a result of the reception of Roman law in the Middle Ages, the unity of the Law.

These are the opening words of Rudolf von Jhering’s Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung (1852-1865). And, indeed, Roman law was one of the elements of the culture of antiquity that left an enduring mark on contemporary Europe and beyond.

Of course, this is particularly conspicuous where the continuity of the development has not been disrupted or obscured by the intervention of the legislature. South Africa probably provides the best example in the modern world. Here Roman-Dutch law as imported by the settlers of the Dutch East India Company in the middle of the seventeenth century - that is, the early modern ius commune in its specifically Dutch variant - still applies today. 1 The courts in Cape Town, Blomfontein, and Pretoria therefore still occasionally rely on authors such as Voet and Vinnius, Van Bynkershoek, Grotius, and Ulrich Huber or even venture back directly to the Roman sources.² Within Europe, Roman law is still referred to, every now and again, in the Scottish courts. In spite of the Union of Crowns and Parliaments, Scotland retains an independent legal system which owes its civilian flavour mainly to the institutional writers of the seventeenth and eighteenth centuries.³ As a result of having come under the influence of English law too, Scots law today presents the picture of a mixed jurisdiction;⁴ together with South African law, it is the main modern exponent of this phenomenon that has remained uncodified.⁵ In San Marino the ius commune still applies in its pure form, unaffected by a reception of English legal rules and doctrines. Professors from Italian faculties of law, appointed as judges of appeal, still today base their decisions ultimately on the Corpus iuris civilis.⁶ By far the majority of the other civilian legal systems have codified their private law.

But much more important, if less obvious, is the imprint that Roman law has left on modern codifications. For on a doctrinal level their draftsmen did not usually intend them to constitute a radical turning point. They aimed largely at setting out, incorporating, and consolidating ‘the legal achievements of centuries’,⁸ as they had been processed and refined by generations of scholars. The codifications bore certain charac­teristics of a restatement and so they were immediately taken to provide a framework for the kind of scholarship of which they were themselves the product.⁹