Roman Law and the Narratives of European Legal History

Abstract

Sometimes one sees things clearer from afar. Some years ago, James Q. Whitman published a remarkable article, evocatively titled" Long live the hatred of Roman law!" In it, he traced the long history of animosity towards Roman law in European culture, from the Middle Ages to the Nazis, discussing the various reasons why Roman law has been attacked by opponents ranging from theologians, lawyers and political leaders as being against the Christian faith, as being foreign, capitalistic, against morality and public good. He argues pointedly that the" hatred of Roman law was, in fact, a constant of western history until 1945." 1 What has been most remarkable is the extent in which similar claims, that Roman law promotes greed, unrestrained capitalism or other vices, have circulated throughout its history. In these often nationalistic narratives about law and what should constitute law, Roman law was presented as an alien and immoral monster, which sought to destroy all that is good and proper. According to these stories, Roman law promoted property absolutism that was considered offensive to theologians, political absolutism that was offensive to everyone except the princes, who adored the example of" princeps legibus solutus", and law that was materialistic and individualistic and thus offensive to the common people and their customs, as mainly characterized by nineteenth century Romantic authors in Germany and their Nazi followers. The latest would even codify their hatred of Roman law in point 19 of the Nazi party program (1920), which would call for the eradication of materialistic Roman law.