The Dean and Faculty of Yale Law School
Invite you to the
2015-2016 Dean’s Lecture
Boudewijn Sirks
Emeritus Regius Professor of Civil Law
University of Oxford
Will the real Roman Law please stand up?
Pandectism, promissory estoppel and other aspects of Roman Law.
Thursday, April 7, 2016
4:30pm
Faculty Lounge
Yale Law School
127 Wall Street
When somebody thinks of Roman law, the idea he or she has of it will depend much from the textbook used. That means, that it is a view, almost always formed by the new scientific approach to the texts of Roman law of the early 19th century, Pandectism. It had an enormous influence, not just on the study of Roman law itself, but also on the codifications based on Roman law, and it is no exaggeration to consider the German Civil Code of 1900 neo-Roman law. But was it also the ‘real’ Roman law? That means also: which one do we mean? The law of Rome of the Republic? of the Empire? of Byzance? Of the Middle Ages? Or of the Modern Period, the ‘usus modernus’? Our basis is a collection of texts, of diverse periods, collected and adjusted every time, and constantly reinterpreted. Each reinterpretation deviates to some extend from the original meaning. Every time the focus on the basic texts shifts and we lose sight of some part of the original. Pushing aside the veil Pandectism has drawn in textbooks over Roman law allows to see that the Romans were not rigid Pandectists themselves. We will find legal figures which fit rather common law than the Roman law we find as source of the civilian systems: negotiable instruments (an assignment, impossible accoding to Pandectism), promissory estoppel, trusts. There is even a shift distinguishable in Roman law from evidentiary, objective criteria to a subjective appreciation. We are facing an open system and our own prejudices, but also, and more important, the question, what law precisely does and how people use it