Roman Law and the Harmonisation of Private Law in Europe

Abstract

The specific significance of Roman law in Europe consisted in the fact that it became the intellectual basis for a largely homogeneous legal culture. The Corpus Juris Civilis provided an essential point of departure for a common European scholarship of private law. It became a cornerstone of the civilian tradition. The modern national codifications are as much an emanation of this tradition as the attempted ‘restatements’ of various areas of private law, such as the Principles of European Contract Law. We cannot return the oak tree to the acorn from whence it has sprung. Nor would we want to. ‘The historical approach to legal scholarship’, in the words of Savigny, ‘is completely misunderstood and distorted, if it is often presumed that the legal entities emanating from the past are posited as something which is in the highest degree exemplary and which has to retain its rule, in an unchanged form, over both the present time and the future. On the contrary, the essence of the historical approach consists in the dispassionate recognition of the value and individuality of every age. What that approach, however, emphatically insists upon, is recognition of the vital connection that ties the present to the past. For without such recognition we shall only be able to observe the outward form of our legal condition, not to grasp its inner substance’. Even if only for this reason, the study of Roman law remains indispensable in modern Europe.

Keywords: Roman law, European private law, ius commune, legal scholarship, usus modernus, canon law, pacta sunt servanda, English law, reception, ecclesiastical courts