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Roman Law and Hypothetical Cases

Any free society needs law—private law based on libertarian principles. This means that there is a need to identify and clarify our basic libertarian principles, and for law to develop to implement and apply these principles. As discussed in KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021), any law code that libertarian theorists devise cannot be hyper-detailed and all-encompassing.

For one thing, many of the particular rules in a given setting will depend on contractual relationships and choices. Libertarian theorists, such as Rothbard, David Friedman, Hans-Hermann Hoppe, envision various territorial enclaves whose internal legal rules are based on local preferences, custom, and contract. For example, in Hoppe’s “covenant communities”: “a libertarian world could and likely would be one with a great variety of locally separated communities engaging distinctly different and far-reaching discrimination” (“e.g. nudists discriminating against bathing suits,” as Jeff Tucker points out in Idiot Patrol).1

Rothbard writes: “In a country, or a world, of totally private property, including streets, and private contractual neighborhoods consisting of property-owners, these owners can make any sort of neighborhood-contracts they wish. In practice, then, the country would be a truly “gorgeous mosaic,” … ranging from rowdy Greenwich Village-type contractual neighborhoods, to socially conservative homogeneous WASP neighborhoods.”2

Hell, David Friedman seems to think some enclaves might have private versions of intellectual property.3 I disagree with Friedman here, but the point is: mere abstract theorizing and deductive reasoning cannot generate all the concrete legal rules that would apply in a given libertarian society. There are limits to armchair theorizing and deductive reasoning, when it comes to law.

I’ve noted before the limits of armchair theorizing.4 This is one problem with “would you push the button?” type questions: there is never enough context supplied to know how to answer the question.5

This concern is mirrored in the idea that libertarian theory can help develop the more general or abstract principles of justice and law, but that the more concrete legal principles, or legal precepts as Professor Randy Barnett calls them,6 require a functioning legal system to develop, preferably a decentralized legal system such as the Anglo-American common law or the ancient Roman law, which was also decentralized and developed the body of Roman law from the outcome of actual disputes between parties.7 The benefit of this is that in an actual dispute, the dispute resolution forum (court, arbitral tribunal, etc.) can gather evidence, ask questions, and take into account a host of contextual factors–relevant facts, custom, agreements, etc. This also helps avoid wasting resources on irrelevant or fanciful questions, and get useful or “interesting” results.8

See also James Gordley, The Jurists: A Critical History (Oxford University Press, 2013), p. 17 (footnotes omitted):

Cicero also thought that the method of the jurists was too unsystematic to be intellectually respectable. In his dialogue De oratore, Licinius Crassus explained that the reason why the study of law was “a matter of great difficulty” was that “no one [had been] able to distribute these matters into their kinds and arrange them as an ars.” By an ars, Cicero did not mean a science as Aristotle had conceived it: an exercise of theoretical, as opposed to practical, reason in which first principles are abstracted and conclusions follow deductively. For Cicero, an ars was an orderly and systematic presentation of practical knowledge, like a Greek treatise on rhetoric. He said: “Ars is the synthesis of disciplined observations for some purpose useful to life.” It was a definition taken from the Stoics and has been attributed to Zeno. The word he was translating as ars was the Greek word techne, which means a useful or applied body of knowledge.”

Armchair theorists don’t have the advantages actual courts do, since their hypotheticals are almost always too sparse and devoid of relevant context to permit an answer. For example, sometimes libertarians argue “hard cases” like the flagpole example, as I recounted in Ralph Raico, R.I.P.:

Years ago, in the Auburn Hotel bar during a Mises event, having drinks and talking libertarian stuff with a bunch of fellow Rothbardians–we were debating the tired old issue of “if a guy falls out of his window and lands on your flagpole extending from your apartment, do you have to let him crawl into your apartment or can you assert your property rights and refuse, so that he would eventually fall to his death?”

The ancaps were batting it around, as they do. Ralph Raico was there, and had been listening mostly quietly. Then he finally commented, “Are you people insane? Of course you have to let him come inside.” We other libertarians paused for a second, and after a moment, resumed our mostly pointless angels-on-a-pin dorm-room bullsession.

I believe Walter Block, and some other libertarians, would argue that the apartment owner need not let the guy dangling from the flagpole into his apartment. If he is refused entry and falls to his death, the lousy neighbor is not guilty of any offense. Raico, and I, would demur. Of course you have to let the guy come in. As I noted in a recent Facebook discussion about this with some other libertarians,

The problem is the problem with libertarian excessive rationalism and armchair theorizing. These hypos never specify enough details, and when we answer in black and white fashion we are assuming there are none, or assuming unrealistic conditions.

I’d say in the hypo specified it’s hard to imagine this being in a real world scenario where the owner is legally entitled to let the guy fall to his death. Why? Because if something like this ever happened frequently at all, then there would be legally relevant responses to it, resulting in a hierarchy of subsidiary rules and conditions that in effect creates the common law “necessity” right but by contract etc.

For example, if I owned the building and rented it out to tenants, or sold some units, I would probably embed a few emergency provisions like this precisely because the tenants/residents would *prefer* it (just like people often like to live in homeowners associations).

So what’s more likely: you rent a flat and the rules of the building are that you can stand on your rights, to prevent a minor intrusion, even at the cost of someone’s life?; or a more normal and reasonable set of rules that says in such cases you have to help your neighbor, and then he pays damages later. What is more likely? And it might not be only the building–it might be the neighborhood, region, or standard term in everyone’s liability insurance, etc.

So yes, I am assuming there would be a richer context, but there always is. So the question is: why assume the asshole-hermit-neighbor mentality would dominate the default/background rules, instead of more reasonable and neighborly ones.

In a real dispute the judge or court can find out these things and take them into account in the ruling. In hypotheticals, they are assumed away, or not specified, or unrealistic assumptions are made (which leads to “uninteresting” results).

The point here is to sound a note of caution and humility about how far armchair theorizing and deducing can go, to recognize its role and limits, and to recognize the complementary role of systems and processes (decentralized court systems) that gradually develop concrete legal rules from which a body of law can develop. Thus we can imagine, in a free, libertarian society, the legal system continually developing and improving, based on the interplay between theorists and pragmatic actors. The theorists argue about and theorize about and justify general principles, like the basic principles of rights (see, e.g. the concise statement of libertarian principles in section 2.1 of the Libertarian Party’s Platform from 2022),9 and the existing decentralized legal system, hearing actual disputes, applying the developed body of law that is consistent with these basic principles of justice, and taking into account all relevant facts and context, gradually builds up a more developed body of concrete rules that people can rely on in their conduct and interactions and that future courts can employ to decide future disputes.10

Judges could turn to theoretical work when extending the law or encountering unsettled issues. And theorists would analyze the body of legal decisions, build on it in their theorizing, help to systematize the body of concrete rules, criticize them where they deviate from libertarian principles, and so on. Thus, they influence each other and play a symbiotic and complementary role. The courts need developed principles of justice and systematized descriptions of developed law, to decide disputes; and the legal theorists need relevant and real situations and decisions and a growing body of practical law to analyze, systematize, build on, and criticize in view of reason and general principles.

In other words, we cannot predict what rules will be voluntarily adopted in any given community, even if it is generally libertarian. Libertarian philosophers can help systematize and identify the abstract, general libertarian principles, while being wary of the limits of armchair theorizing, as we cannot deduce all the legal rules that would flow from abstract libertarian principles. Instead, law should develop organically and in response to real disputes where solutions may be found and used to develop the law further in subsequent legal disputes.

Thus, as I wrote in “Legislation and the Discovery of Law in a Free Society” (Part V.B, “The Role of Commentators and Codes”):

if a libertarian constitution or code were in place, it would be relatively sparse. It would specify as first principles that the initiation of force is illegitimate, and that the individual rights to own one’s own body and any property one homesteads or acquires voluntarily from other owners are absolute and inviolable. As deductions therefrom, it could specify that rape, murder, theft, assault, battery, and trespass are also rights-violations. As Rothbard states:

The Law Code of a purely free society would simply enshrine the libertarian axiom: prohibition of any violence against the person or property of another (except in defense of someone’s person or property), property to be defined as self-ownership plus the ownership of resources that one has found, transformed, or bought or received after such transformation. The task of the Code would be to spell out the implications of this axiom (e.g., the libertarian sections of the law merchant or common law would be co-opted, while the statist accretions would be discarded). The Code would then be applied to specific cases by the free-market judges, who would all pledge themselves to follow it.11

See also Rothbard, The Ethics of Liberty (New York: New York University Press, 1998), Preface, at xlviii–xlix:

While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future. Hopefully, libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.”

And Rothbard, How To Have Law Without Legislation:

there exists another alternative for law in society, an alternative not only to administrative decree or statutory legislation, but even to judge-made law. That alternative is the libertarian law, based on the criterion that violence may only be used against those who initiate violence, and based therefore on the inviolability of the person and property of every individual from “invasion” by violence. In practice, this means taking the largely libertarian common law, and correcting it by the use of man’s reason, before enshrining it as a permanently fixed libertarian code or constitution. And it means the continual interpretation and application of this libertarian law code by experts and judges in privately competitive courts.

Continuing the quote from “Legislation and the Discovery of Law in a Free Society“:

(I would add that the “libertarian” sections of Roman law, e.g. as embodied in modern civil codes, could be adopted in developing Rothbard’s libertarian Law Code.)

But because of the near-infinite variety of ways in which humans can interact, such a code could never be made all-comprehensive. Any codifier who attempted to do this would face the information problems discussed herein. At some point judges need to consider the particular facts of a controversy and, keeping principles of justice in mind, eke out the applicable rule. Judges will sometimes make mistakes, but, then, the fact that individuals are fallible can never be escaped, so this criticism is moot.

It is true that a decentralized, gradually-developed body of case law can become unwieldy and difficult to research. But it is not more so than the modern morass of statutes. I cannot see how either a lawyer or the average layman would have an easier time discerning what law applies to him in a given situation under today’s statute-ridden laws, as opposed to in a decentralized legal system having a body of judge-discovered principles. Surely in both cases laymen may resort to specialists such as attorneys and explanatory treatises to tell them what the law is. At least in a decentralized system the law is less likely to change from day to day, so that when a person knows what the law is today he is more certain it will be the law tomorrow. And there are likely to be far fewer laws regulating far fewer aspects of our daily lives in a judge-based system, which should make it easier to determine what the relevant law is concerning a given situation.

There is for these reasons a significant role for codification in a free society, but only for private, not legislative, codification. To the extent such private codes are systematic and rational, they can both influence the rational development of the law and present or systematize it in concise form for lawyers and laymen alike. We already have treatises such as the Restatements of the law, Texas Jurisprudence Third, American Jurisprudence Second, and Corpus Juris Secundum. These treatises would be far more rational and systematic, and shorter, if they did not have to take an unwieldy and interfering body of legislation into account; if they could focus primarily on common-law developments. Legal scholars who currently draft civil code articles for consideration and enactment by a legislature could surely dedicate their energies to codifying and systematizing the body of case law that has been developed.12

Even a true codification of existing case law can make mistakes. If the code is private, judges can ignore the lapses in the commentator’s reasoning. Of course, this has the extra benefit of giving an incentive to private codifiers not to engage in dishonest reasoning or meddlesome social planning. If a codifier wants his work to be used and acknowledged, he will attempt to accurately describe the existing body of law when he organizes and presents it, and will likely be explicit when recommending that judges adopt certain changes in future decisions.

And as noted in A Libertarian Theory of Punishment and Rights, practicing lawyers, in their roles as advocates for clients in real disputes, would also play a hybrid or intermediary role in helping to develop theory:

Many crimes would have established or generally accepted levels or at least ranges of permissible punishment–for example, as worked out by a private justice system of a free society or by specialists writing treatises on the subject. … No doubt litigants in court or equivalent forums, especially the defendant, would hire lawyers to present the best arguments possible in favor of punishment and its permissible bounds. In a society that respects the general libertarian theory of rights and punishment developed herein, one could even expect lawyers to specialize in arguing whether a defendant is estopped from asserting a particular defense, whether a given defense is capable of being made universal or particular when the burden of proof for each side has been satisfied, and the like.

Now. Despite my comments above about the limits of armchair theorizing and the importance of judges or courts hearing real disputes between real parties to be able to take full context into account, so as to develop interesting, relevant, and practical concrete legal rules, there are of course no hard and fast limits as to the borders between the domain of the theorist and philosopher, on the one hand, and the judges and lawyers and advocates that deal with real disputes, on the other. And although the law will tend to grow from the accretion of real decisions in which judges solve dispute between real parties by applying and sometimes extending past legal principles, there can be a role for a sort of intermediate approach by the theorists, in framing hypothetical cases, much like libertarian political and philosophers do now. Of course, they must be wary of the limits of the use of hypotheticals, although they are no doubt useful for theorists.

In fact, interestingly, a somewhat similar use of hypotheticals was known even in the ancient Roman law. As I noted in Knowledge, Calculation, Conflict, and Law (footnotes omitted):

Barnett does not provide a rigorous argument showing where are the exact limits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?” It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.

Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights. Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules. It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.13

For more detail on the use of hypothetical by Roman jurists, see, e.g., James Hadley, Introduction To Roman Law (Littleton, Colo.: Fred Rothman, [1873] 1996), pp. 66–67:

The cases submitted to these privileged jurists were not always those which had come up in actual experience. It appears that fictitious or imaginary cases were also presented for their judgment: under such and such a possible or conceivable combination of circumstances, what would the law require? A recent able lecturer on ancient law, Mr. Maine, finds in this fact an explanation of the more thorough scientific development which distinguishes the Roman law from the English. The English law is made up chiefly from the decisions of the judges, as given in the published reports. But the judge confines himself as closely as he can to the facts of the case before him. Statements as to what the law would be, in other cases differing more or less from the one in hand, are looked upon with disfavor: obiter dicta they are called, extra-judicial statements, both of which terms carry with them a shade of censure. But the Roman jurisconsult was liable to bo called upon for his opinion on cases differing in every imaginable way from those which had occurred in practice, and was thus led to take into account and make provision for a multitude of relations which the English judge would leave untouched because they do not happen to be involved in the cases actually presented for his consideration.

Other Roman law scholars have also commented on the use of hypotheticals by the Roman jurists. See, e.g., H.F. Jolowicz & Barry Nicholas, Historical Introduction to the Study of Roman Law, 3rd ed. (Cambridge, U.K.: University Press, 1972):

From the beginning of the empire the importance of responsa were given for an actual case, whether one which led to litigation or not, but this was not necessary. A purely hypothetical case might be raised, for instance, by a pupil, discussed and decided by the jurist, and, since there was in any event no formality, the influence of the decision might be equal to that of one given on real facts. [95]

Detailed and systematic works of an original character were written, though these, too, no doubt, were constructed largely on the ‘casuist’ principle, i.e., on the discussion of individual cases (actual or hypothetical) which continued to characterise Roman legal literature throughout, except in introductory works for students. [97]

Bruce W. Frier, The Rise of the Roman Jurists: Studies in Cicero’s pro Caecina (Princeton, N.J.: Princeton University Press, 1985), pp. 163–71, at p. 167 in particular (footnotes omitted):

the hypothetical cases in juristic writings serve a large number of purposes; they range from entirely plausible and everyday situations to which rules can be straightforwardly applied, to farfetched “limiting cases” through which highly theoretical propositions can be eluci­dated. The one common characteristic they share is that their purpose is always to clarify law, and for this reason a legal principle or rule (usually a new one) is always involved in their solution; the case thus implies a capacity to generalize beyond the case.

W.W. Buckland & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline (Cambridge, U.K.: University Press, 1965), pp. 6–15, esp. 9:

The fact that the Roman law had no case law does not mean that their method was less casuistic than ours. If we may judge from what is preserved, it was unusual for a Roman lawyer, except in elementary books, to enter on abstract general statements of the law on a topic: he nearly always put the matter as a concrete case. The main difference is that with us the case is an actual one which has been decided in Court, with the Romans it is one which has been discussed in the lawyer’s chambers and may be quite imaginary.”

Peter Stein, Roman Law in European History (Cambridge University Press, 1999):

For most of the duration of the republic the law was developed less through legislation and its interpretation than through the control of legal remedies. Originally the first stage of a legal action was formal and technical; there was a limited number of forms of action, which were begun by the oral declaration of set words in the presence of the magistrate and the defendant. A plaintiff who did not follow the precise wording might lose his action. …

As Rome expanded, a special magistrate, called the praetor, also elected annually, was established in 367 BC, to deal exclusively with the administration of justice. He had no special training but he was expected to supervise the formal stage of every legal action. The praetor retained the two-stage character of the legal action, the first concerned with the categorisation of the issue in legal terms and the second with the actual trial of that issue. The second stage had always been, and remained, relatively informal. This procedure was very economical of official time. The magistrate was concerned with the first stage, which was essential, but it was the second stage which was by far the more time-consuming. The Romans realised that in many situations quarrels arise not from disagreement about the law, which is clear enough, but from dispute about the facts and that an ordinary citizen, even without experience of the workings of the law, was quite capable of deciding what had happened.

In the second half of the republic an important change in legal procedure was introduced. When the parties appeared before him, the praetor allowed them, instead of adhering to set forms, to express their claims and defences in their own words. Then, having discovered what the issue was, he set it out in hypothetical terms in a written document, known as a formula. [8–9]

The elaboration of classical law remained largely centred on cases, either real cases or hypothetical cases devised in the schools. [18]

After the publication of the Accursian Gloss, the study of the civil law in Bologna, while still intense, lost some of its freshness and excitement. In the second half of the thirteenth century, the focus of study of Justinian’s texts switched to Orleans, where civil law studies received a boost from the papal prohibition of its study in Paris. … The two teachers who gave Orleans its special character, Jacobus de Ravanis (Jacques de Revigny) and Petrus de Bellapertica (Pierre de Belleperche), both learned their law at Orleans. They did not introduce any particular novelty into the teaching of the civil law but extended certain tendencies which were already observable at Bologna, particularly the use of dialectical reasoning. Instead of the ingenious citation of texts, they adopted a freer approach, relying on logical argument and frequently extending the ratio of a text by analogy to what the Bolognese would have regarded as beyond the permissible limit. Quaestiones de facto, discussions of problems arising out of fact-situations (which might be hypothetical), were given an important place in the curriculum and some of these involved the effect of local customs. [67–68]

A. Arthur Schiller, Roman Law: Mechanisms of Development (Mouton Publishers, 1978), § 137:

One of the earliest and most persistent groups of juristic works were the Responsa or collections of actual opinions rendered by the jurists in answer to requests by the parties, the magistrate or judge-juror (iudex) in the course of a trial … As they appear in the extracts in the Digest of Justin­ian the responsa are quite brief with summary statement of the factual situa­tion and frequent omission of the reason for the opinion. The names of the parties are replaced by fictitious names such as Gaius, Sempronius, etc. (analogues of John Doe, Richard Roe). The query frequently can only be reconstructed from the answer—generally introduced by the terms respondi (I answer) or respondit (he responds)—and in some cases the responsum form has entirely disappeared, being replaced by a simple casuistic sentence. Some collections of opinions are entitled Quaestiones or Disputationes, presumably works originating in the teaching activity o f the jurists … , comprising actual and hypothetical cases, generally introduced by the terms quaero (I ask) or quaesitum est (it was asked). Such works often included the treatment of other jurists upon the same controveries, and could be more dogmatically expressed than the cases in Responsa. There exists, however, no sharp distinction between Quaestiones and Responsa, and quaestiones material is often found in Responsa and vice versa. A type of work intermediate between the two is the Epistulae, actual or hypo­thetical cases which, as the title indicates, were discussed in the exchange of letters between jurists or between jurist and student-disciple.

Alan Watson, “Justinian’s Corpus Iuris Civilis: Oddities of Legal Development; and Human Civilization,” Lecture 2 in Authority of Law; and Law: Eight Lectures (Stockholm: Institutet fr̈ Rẗtshistorisk Forskning, 2003), p. 65:

The texts of the jurists include statements of principles, discussions of rules, commentary on the scope or interpretation of edicts and statutes, qualification of other juristic opinion, and the treatment of problem cases, real or hypothetical.

James Gordley, The Jurists: A Critical History (Oxford University Press, 2013), p. 17 :

To judge from the texts that have survived, to reproach the jurists for mentioning the names of the parties seems unfair. Names are rare and the cases are usually stated so abstractly that one cannot tell whether they are real or hypothetical.

See also John P. Dawson, The Oracles of the Law (Thomas M. Cooley Lectures, Ann Arbor: University of Michigan Law School, 1968), commenting on the use of hypotheticals in the Roman law as well as English common law:

… I do not offer this passage, therefore, as a major triumph of the Roman intellect. To use it here is somewhat unfair, for they usually did a better job. The main purpose in quoting it is again to suggest the intense concentration on specific cases vinegar and wine, brass and gold, Carnelian land and Sempronian land. The cases used in this passage were evidently hypothetical, as they often were, though in other passages in the Digest it plainly appears that we have before us the substance of a jurist’s reply to an inquiring magistrate, iudex, or litigant in a real-life case. The cases are briefly stated, likewise the jurists’ own conclusion. No elaborately reasoned justification was needed, for to persons outside the elite group the jurist’s own authority was enough and those inside would understand the reasons well enough. There were many assumptions that were unspoken or merely hinted at and that have only been disclosed through centuries of later patient study. The primary task of the jurists as they conceived it was to provide solutions for cases that had arisen or might arise, testing and revising their central ideas by observing their effects on particular cases. [116–17]

Connected with this was a major change in the style and content of the Year Books themselves. During the last 150 years, until the series trailed off after 1535, the Year Books became, in less and less degree, manuals for pleaders. More and more they became repositories of doctrine. The change showed itself in two quite different ways. Many entries consisted of no more than short, condensed statements of legal propositions. Where debates were reproduced, however, the crisp interchange of earlier times gave way to long and discursive essays on questions of law. The discussions often wandered far afield, as the judges and serjeants stimulated each other to explore refinements of doctrine. Changes of this kind are too complex to be documented in detail, though it has already been noted that change had begun as early as the 1380’s.[53] The space devoted to these high-level debates may have made the later Year Books less useful and less widely read outside the inner circle of the law’s elite. However that may be, the gradual change in style and content reflects the increasing predominance of that intimate brotherhood of judges and serjeants, joined in the Order of the Coif. They lived and ate and traveled together and devoted themselves increasingly to refining and perfecting their “common erudition.”

Then in the last fifty years of the Year Book period the reporters began to record discussions that had still less to do with adjudication. Conversations between judges and serjeants at dinner were thought to be equally worth reporting. One whole section of a late report in Year Book format consisted exclusively of arguments at a moot in an Inn of Court. It became clear as the Year Book period drew to a close that the small band who were guardians of the cult could reach their conclusions and make their pronouncements without waiting to be formally consulted. For those outside the inner circle, who looked to it as the source from which the inspired messages must come, what did it matter that the pronouncements were unsolicited? Why bother to kill a ram if the oracles will speak freely of their own volition?

53 … An instructive example is Y.B. 9 Henry VII 24-25, Easter, pl. 10, 1 1, and 12 ( 1494), where a prolonged discussion of a series of related themes was apparently commenced by a purely hypothetical question raised by Serjeant Keble, and the text was filled with comments such as: “all the justices and serjeants agreed this was good law,” “it was held by all the justices and serjeants,” “this was conceded by the whole court,” “agreed as good law.” [63-64]

Yet contemporaries evidently did not find it strange that judges and lawyers, gathered in conclave, could be credited with issuing authoritative pronouncements on matters that were divorced from pending litigation. Other reporters beside Coke referred to judicial “resolutions,” some as remote from the issues actually decided as those announced by him.[21] The judges still gathered in the Exchequer Chamber, and conclusions reached there carried even greater force than they had a century before, though these assemblies still possessed no judicial powers of their own. After 1600, decisions reached at the dinner table were  reported more rarely. But the judges often met in the Serjeants’ Inns, heard cases argued there, answered questions referred to them by individual judges, or merely debated interesting questions; the conclusions in these gatherings were solemnly reported with no effort to distinguish them from formal court decisions. In other words, the medieval organization of bench and bar was still in working order. So long as it persisted modern conceptions of precedent and refined case-law techniques would have seemed unnecessary and unnatural. Growth and change still depended much more on consensus among the experts who were proficient in the common learning than on judgments rendered in particular cases.

21 Judicial “resolutions,” some in answer to purely hypothetical questions, appeared in … [citations omitted] [71-72]

Barry Nicholas, An Introduction to Roman Law (Oxford University Press, 1962), pp. 33–34:

Forms of legal literature. In the perspective of history the most important function of the jurists was to write, and their litera­ture was vast and varied. We owe almost all that survives to the Digest, and that, large as it is, contains only a fraction even of what still survived in Justinian’s day. This literature took many forms and had many names, but it can be very broadly classified under four headings: the expository textbook, introductory or more advanced, the commentary, the problematic work, and the monograph. Only of the textbook do we possess a virtually complete example, the Institutes of Gaius. The rest are preserved only in fragments, though often very substantial fragments, in the Digest and in a few small intervening compilations. The largest category in point of surviving bulk is that of the com­mentary. In addition to commentaries on the Edict, which contribute more than a third of the Digest, there were com­mentaries on individual leges and senastusconsulta and, more especially, commentaries on the works of earlier jurists. Pomponius, Paul, and Ulpian, for example, all wrote works ad Sabinum—commentaries on Sabinus’ textbook on the ius civile—and works of other jurists were treated similarly. Even in such commentaries dogmatic exposition is freely interspersed with illustrations and problems, but the casuistic approach of the Roman jurist is best seen in the problematic literature, which makes up some third of the Digest. In works of this category we find loosely strung together an immense number of problems, sometimes with a citation and discussion of the opinions of other jurists, sometimes simply with the writer’s own conclusion. It is this problematic literature which gives Roman law its extra­ordinary richness of detail. It provides the case law of the Roman system. But whereas the development of the Common law has largely depended on the appearance of problems in the actual practice of the courts, the Roman lawyer elaborated his system with the aid often of hypothetical problems. For though some of the problems discussed arose in actual practice and were submitted to the jurist for his responsum, others arose in discussion with pupils, and others again were simply the product of the writer’s own speculations. Some of these problems appear far­ fetched, but we should remember that it is often the extreme and improbable case which reveals the limits of a principle.

Alan Watson, Roman Law and Comparative Law (University of Georgia Press, 1991):

What is again overlooked is the enormous difference between Roman and English casuistic discussion. The Roman jurist works at home. The question, real or hypothetical, will be put to him. He will reflect on it, perhaps in discussion with friends and students, fitting the facts within a general framework of a legal institution. the issue for him is an academic one. He is not being retained by a client whose interests he has to serve. He does not consider procedural dodges and devices to get an opponent into court or entrap him. He is not concerned with the outcome of a particular lawsuit. He has no interest in whether one party is a decent fellow and the other a rogue. He will set the particular facts within a wider context of facts that are “slightly different” to determine where lines should be drawn.” [261]

The legal tradition has considerable impact on the shaping of ht law, and the individual sources of law have different effects on the growth of the law. Judge-made law is different from jurist-made law, and both are different again from statutory law. So much is obvious and need not detain us more than a moment. Judges are, of course, in a difficult position when it comes to making law. In a system that gives force to precedent, as does English law, judges are concerned only with the immediate actual case and with fitting it within the available remedies and reconciling it with existing judgments. As lawmakers, they are not in a position to consider the legal institutions as a whole. And a case may come before the bench at the wrong moment: the law may already b too settled to be easily redirected; or it may be so underdeveloped as to provide little guidance for a judgment which itself will determine the future growth of the law. In contrast, jurists can set out the law as a whole, treat a branch of the law in a systematic way, and deal with legal concepts theoretically. Even when concerned with an actual, factual situation, jurists may consider other hypothetical situations, comparing and contrasting several together, always looking for a principle, concentrating on the outer limits of a rule or institution. And if the law seems settled but has taken a wrong turning, it is easier for jurists than for judges to postulate a new beginning.. [250–51]

See also Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, J.M. Kelly, trans (Oxford University Press, 1966), p. 86:

The praetor very often did not direct the judge’s attention to any already existing legal norms, but described in the formula merely a hypothetical set of facts which, if established, would lead to the condemnation of the defendant.


One final comment: See the related comments of Hans-Hermann Hoppe on the relative merits of the English common law vs. the European continental and Romanesque civil law. From Economy, Society, and History (Mises Institute, 2021; https://www.hanshoppe.com/esh/), p. 111:14

This is the structure that the initial founding cantons in Switzerland had, where all free men swore an oath that they would come to mutually assist each other in case of an attack against them. And these cities frequently had written law codes, that is, Magdeburg Law or Hamburg Law or Hanover Law or Lübeck Law, etc., so that people who moved to these cities knew what law code would apply to them, and when new cities were founded, the normal thing to do was to adopt one of the already existing law codes and maybe make a few amendments to it. That is, some law codes became the law codes, not just of one city, but of many, many cities, who adopted the initial example of a place that first took the initiative to write these laws down.

In this connection, let me make a little side remark. In English-speaking countries, America and England, there is a certain amount of pride in having the so-called common law, which is, in a way, noncodified law, or case law. The Continental tradition, as you know, has been for a long time different. There, we have had codified law taken from the Romans, especially from the East Romans who had codified this law for the first time in an extensive manner and then, of course, in modern times, the Napoleonic Code, which has been taken over by most Continental European states in one form or another with some modifications. And, as I said, Anglo-Saxons looked down on codified law and hailed their own noncodified common law. I want to just remark that, for instance, Max Weber has a very interesting observation regarding this. He sees the reason for the noncodification of the common law in the self-interest of the lawyers to make the law difficult to understand for the layman and thus make a lot of money. He emphasizes that codified law makes it possible for the layman on the street who can read to study the law book himself and go to court himself and point out, here, that this law is written down. So, maybe this excessive pride that the Anglo-Saxons have in their common law might be a little bit overdrawn.

  1. See Hoppe on Covenant Communities and Advocates of Alternative Lifestyles. []
  2.  Murray N. Rothbard, “The ‘New Fusionism’: A Movement For Our Time,” Rothbard-Rockwell ReportVol. II, no. 1, pp. 1, 3–10 (Jan. 1991); similar to his “Fusionism”Rothbard-Rockwell ReportVol. VI, no. 8, pp. 1–5 (Aug. 1995), pp. 1 &3; see also The Three Fusionisms: Old, New, and Cautious. []
  3. David Friedman on Intellectual Property; also KOL377 | No Way Jose Ep. 140: David Friedman Debate Prep: Deontology vs. Consequentialism, Utilitarianism, Natural Rights, Argumentation Ethics, Intellectual PropertyDavid Friedman on the “Problem” of PiracyDavid Friedman on CopyrightDavid Friedman: Current Experiments in Self Publishing. []
  4. The Limits of Armchair Theorizing: The case of Threats. []
  5. On Pushing the Button–the problem with magic. []
  6. Barnett distinguishes between basic libertarian principles, which concern abstract natural rights or “background” rights, and “legal precepts,”  the concrete legal rules that are developed by a legal system to implement the basic principles. See my article Knowledge, Calculation, Conflict, and Law, a review essay of Barnett’s The Structure of Liberty. []
  7. Legislation and the Discovery of Law in a Free Society.  []
  8. Mises: Keep It Interesting. []
  9. Aggression and Property Rights Plank in the Libertarian Party Platform:

    Aggression is the use, trespass against, or invasion of the borders of another person’s owned resource (property) without the owner’s consent; or the threat thereof. We oppose all acts of aggression as illegitimate and unjust, whether committed by private actors or the state.]

    [Each person is the presumptive owner of his or her own body (self-ownership), which right may be forfeited only as a consequence of committing an act of aggression. Property rights in external, scarce resources are determined in accordance with the principles of original appropriation or homesteading (whereby a person becomes an owner of an unowned resource by first use and transformation), contract (whereby the owner consensually transfers ownership to another person), and rectification (whereby an owner’s property rights in certain resources are transferred to a victim of the owner’s tort, trespass, or aggression to compensate the victim). []

  10. See Another Problem with Legislation: James Carter v. the Field Codes, discussing the quite different way that “judges” have to handle disputes in a statist, democratic-lawmaking, legislation-dominated system: instead of trying to do justice in the case at hand, the “judges” simply interpret words and apply them to the dispute, regardless of considerations of justice.  []
  11. Murray N. Rothbard, Man, Economy, and State, with Power and Market, Scholars ed., second ed. (Auburn, Ala: Ludwig von Mises Institute, 2009) p. 1053 n.4 (Power and Market, ch. 1); idem, For A New Liberty, second ed. (Mises Institute, 2006; https://mises.org/library/new-liberty-libertarian-manifesto), at 282. []
  12. Lawrence M. Friedman, A History of American Law, 404 (New York: Simon & Schuster, Inc., 2d ed. 1985), at 406, states that the Field “codes are the spiritual parents of the Restatements of the Law—black letter codes of the 20th century, sponsored by the American Law Institute, but meant for persuasion of judges, rather than enactment into law.” See also 3 William Blackstone, Commentaries on the Laws of England, at *267 (discussing problems that arise when a new system of law is legislatively codified rather than built upon the evolved wisdom of courts). For a fascinating discussion of the significance of both private and legislated codes for the development of law, see Alan Watson, “The Importance of Nutshells,'” 42 Am. J. Comp. L. 1 (1994).  []
  13. I briefly discuss the use by the Roman jurists of hypotheticals in previous talks and articles, e.g. KOL020 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 3: Applications I: Legal Systems, Contract, Fraud” (Mises Academy, 2011); Mises: Keep It Interesting; KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021); and Stateless Justice: A Response to Mario Demolidor (2020). []
  14. Based on this lecture, The Production of Law and Order: Natural Order, Feudalism, and Federalism, starting at 1:07:30. []
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