Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

Interpretation was often framed as “definition” of specific words in the underlying law, but jurists sometimes allowed them selves enormous freedom within that rhetorical framework. Before discussing the more adventurous cases, let me mention two circumstances in which interpretation would be required by any lights. First, Roman laws (of whatever sort) did not gen erally come with built-in definitions; contrast modern statutes, which are full of them. So a law protected the owner of “herd animals” ( pecudes ) from “wrongful killing” of those animals. In Rome’s early days, the term “herd animals” was largely clear (though there was controversy over pigs), but the jurists had to be called in eventually to settle whether elephants were cov ered. Second, in any system interpreters may need to be called in to clean up after legal documents were poorly written. For instance, lawyers wondered what do to with a promise “that a product was of good quality.” If it turned out to be defective, the promise would be for an “impossibility,” like a car that will take you to the moon, and so invalid. (It would be better, they thought, to use a promise to pay a penalty if it wasn’t; [4] seems to do both). In cases such as these, as I noted, the need for interpreta tion is fairly clear. But often it was used to make bigger changes than were necessary to solve particular problems, and some times the purported definition or interpretation seems com pletely unmotivated. So, for instance, the Edict gives an action to enforce contractual sale without spelling out most of the rules that govern buying and selling. Instead of being added in some form, they were brought in as part of the “definition”

32