Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

this penalty applies only to dealers, not to the end user. Still, the legal “knowledge” involved has a recognizable source in a genuine legal document. In Rome, a character in a comedy of the mid second century bc jokes that he doesn’t care whether he gets hold of a woman he desires “by stealth, force, or per mission,” playing on the phrase from the interdicts (Chapter 13). And several centuries later, someone took the trouble to inscribe what look to be the rules of a drinking game in the official form used for statutes passed by the assembly. The lan guage of the law filtered down to the Romans, too. So perhaps the writer who tried to shoo away the civil law was actually, in a clumsy way, trying to harness its power. But perhaps there is a deeper issue at stake, and perhaps the writer of the contract was more seriously conflicted. “Let this agreement be free from civil law” could be interpreted as a genuine attempt to opt out of some or all of the legal system. In the former case, the idea would be to avoid appeal to legal institutions, that is, a trial and the related proceedings. Thus it might be like the clauses in most American credit card and cell phone contracts that move disputes from the (public) courts to (private) arbitration (paid for, not incidentally, by the indus tries in question). Or consider how the possibility of no-fault divorce encourages spouses to negotiate a settlement on their own, which is only ratified after the fact by a judge. The latter case would mean a move outside of the legal system entirely. While cash sale is one of the situations Roman law is comfort able with handling, it certainly exists without that law, and the Romans knew this. In fact, the general notion of voluntary

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