A Sua Sponte Reading Recommendation

Introductory texts on the tradition

From what we have seen (and we could be wrong - we hope we are!), only a minority of law schools in the common law world make a basic grounding in Roman law, the ius commune, or Western legal history a requirement. For many law students, the closest they’ll get to engaging with these topics is indirectly, perhaps through studying the natural law tradition as part of a jurisprudence course. Many students might thus gain some familiarity with the works of Aristotle and Saint Thomas Aquinas, who serve as representative titans of the pre-modern natural law tradition, and perhaps they will also be exposed to the likes of, say, Professors Lon Fuller and John Finnis as prominent natural law theorists of our own era.

While we have unyielding admiration for these great thinkers, we firmly think that law students, practitioners, and indeed anyone with an interest in law, would benefit immensely from exposure to the basics of what we might call the civilian juristic side of the classical legal tradition, that is partially independent of its philosophical and theological elements. Of course, the thinkers and writers of the civilian juristic side of the tradition were invariably immensely influenced by the philosophical and theological principles of the natural law; but they were primarily concerned with working out the demands of such principles in operative, working legal systems, that tried to bring the abstractions down to earth and implement them in concrete, beneficial ways. The task of the classical jurists of the ius commune was fundamentally to relate theory and practice by applying classical principles to the contemporary problems and practices of their time and context.

Familiarity with this side of the classical legal tradition would encompass exposure to the basics of Roman public and private law precepts and their codification in Emperor Justinian’s enormously influential Corpus Juris Civilis; the major milestones in the epic story of the revival, spread, and adaptation of the Corpus across a range of divergent legal and political contexts in medieval Western Europe through the ius commune tradition; the establishment of Canon Law as a systematic body of law with universal applicability across Christendom, complete with heavy reliance on Roman legal texts; and how the creative use of classical legal argumentation by both temporal and religious authorities to legitimize and build up assertions of imperial, papal, and monarchical authority, are central to understanding the basic grammar of public law thinking today.

Like the commentators and jurists of the ius commune, the task of classically minded jurists today remains one of adaptation and translation, rather than uncritically replicating first-order rules of an earlier period of classical law. But before attempting to grapple with that task, it certainly helps to know about the essential elements of the theory and practice of these previous eras.

To that end, we at the New Digest will occasionally recommend texts that we hope will be of interest to those of our readers that want a basic grounding in the classical legal tradition, but may be wondering where to start. Today we begin by recommending some outstanding introductory texts, roughly from general to concrete:

• John Maurice Kelly, A Short History of Western Legal Theory (Oxford University Press, 1992). JM Kelly was a remarkable man of many talents. He was, at once, a famed Roman law scholar, the father of modern Irish constitutional law scholarship, and a statesman who served in the highest echelons of Irish political life, serving as both a Minister and as Attorney General. JM Kelly died in 1991 and A Short History was published posthumously in 1992. The preface to this recommended text states that it was intended by Kelly to provide students of law and politics a “guide of manageable size to the history of the leading themes of legal theory of Western civilization”. This rather dry self-description of the book’s ambitions is a testament to the author’s modesty but fails as a descriptor of what the book actually achieves. “Manageably sized guide” does not do justice to the impressive heights of erudition, elegance, and rigor the book rises to and stays at while synthesizing over two millennia of Western legal thinking. It is rich and highly readable, offering readers a tour d’horizon of Western legal theory running from the Grecian philosophers right through to the analytical jurisprudence that predominated 20th Century common law legal philosophy. For those interested in the classical legal tradition, it is worth purchasing for its superb opening chapters on Greek, Roman, and Medieval legal thought alone. Here one will be exposed to a rich overview of the main themes and thinkers of these eras, and enjoy the added bonus of a rich bibliography for future classical exploration. It ranks as one of the greatest works ever produced by an Irish legal academic.

• Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1985). This book is what one might justly call a stone-cold classic. It is a magisterial work of scholarship that delves into the roots of modern Western legal institutions and concepts. The book lavishes a great deal of attention on the revival and adaptation of classical Roman law and the Corpus Juris and how it helped shape, inter alia, the canon law of the church, the royal law of the major kingdoms, the relationship between imperial and royal authority, the urban law of the newly emerging cities, feudal law, manorial law, and mercantile law. It is also immensely readable, notwithstanding its length and richness.

• Richard Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Harvard University Press, 2015). This work is a masterclass penned by one of the greatest living scholars of the history of classical legal tradition. The book documents how lawyers in the Western tradition didn’t study natural law as an abstract moral philosophy, but how they instead regarded it as critical to the practical workings of legal systems. Classical lawyers understood that the task of the judicial system was to put the tenets of the natural law into concrete form, building an edifice of positive law on natural law’s foundations, and ensuring harmony between both. Natural Law in Court probes how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War. This crisply written text comes complete with an endless series of fascinating vignettes about the manifold ways in which precepts of natural law were deployed in legal practice. In case study after case study, Helmholz demonstrates with unmistakable clarity that natural law precepts were woven into the practice of Western legal systems, including domains like statutory interpretation. In this context, Helmholz usefully points out how the burning question for natural lawyers was not what should happen in the event that natural law and positive law appeared to clash. This was regarded as a far less pressing issue for practising lawyers than addressing the more work-a-day question of how these two sources of law could be best reconciled and harmonised. The answer repeatedly found by Professor Helmholz in the legal systems that he examines was that lawyers and judges articulated a rich web of interpretative presumptions about how the lawmaker intends to act. These standing juridical presumptions were rooted in the unmistakably classical premise the lawmaker is an actor that should always act reasonably and with an eye to the common good, a duty which was understood to import respect for natural, customary, and divine law. As one of us recently pointed out elsewhere on the substack, the legacy of these interpretative presumptions remains vibrant today.

• Rafael Domingo, Roman Law: An Introduction (Routledge 2018). An introduction to the basic concepts of Roman law, including both natural law and civil law, that is notable for its sparkling clarity, concision and depth of thought.

• H.F. Jolowicz & Barry Nicholas, Historical Introduction to the Study of Roman Law (3d ed.). An extraordinarily rich, historically-inflected introduction that explains the development of Roman law over time, from Republic to Principate to Dominate and beyond.

• Laurent Waelkens, Amne Adverso: Roman Legal Heritage in European Culture (Leuven University Press 2015). A unique volume, filled on every page with the profound scholarship of one of Europe’s great scholars of the Roman legal tradition. Waelkens not only introduces core concepts, but traces their development and legacy all the way through the ius commune of the medieval and early modern era.

• The Cambridge Companion to Roman Law (2015). A banquet of fine contributions, resulting in an excellent overview. (And better than the similar Oxford volume, which suffers from an excess of sociology). Not to be missed is a magisterial and concise account of Roman public law by A.J.B. Sirks.

We hope you enjoy reading these as much as we continue to do. In the months ahead we will be back with more Sua Sponte proposals, so stay tuned.