Roman Law and the Legal World of the Romans

Conclusion

exchange of goods clearly exists as a social institution outside of any legal system at all. The parties to this “contract” might then be saying that their agreement wasn’t really a “contract” after all; they didn’t want their “gentleman’s agreement” to be co-opted by the legal system and so taken at least partially out of their control. Why opt out of the legal system in either of these senses? There are at least a couple of reasons. As mentioned in the intro duction, law (like rhetoric) was a package of specialized knowl edge available only to the few. This might not have bothered a Cicero, but it could be a concern for our Boesus and Secundus. But there is also a problem that might have bothered everyone. Whatever its gaps and flaws, Roman law became a relatively large and independent system. It was not entirely under the control of any individual, perhaps not even under the emper ors’, and certainly not that of ordinary lawyers and litigants. The law might give the “wrong” decision because a particular case raised issues that had not previously been factored in. Or, as we have seen throughout this book, there are many circum stances in which there is no clear “right” answer, and the law must make somewhat arbitrary choices about what values to preserve, about who will lose out when someone has to take the fall. The losing parties in these cases are likely to take a short term view and claim that the law got it “wrong.” Turning law into a system opens up a space between it and “justice,” or at least so it can be made to seem. I must admit that it is not clear that any of this is going on in our document. An arbitration clause, if that is what was

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