Article by Barry Nicholas
It is a familiar observation that the Romans made use to a remarkable extent of verbal (and usually oral) forms in many aspects of life. Already in the sixteenth century the French humanist Barnabé Brisson published a vast compendium of such forms, drawn from literary and legal sources. This is still on occasion a useful quarry (though of course the discovery of the Verona manuscript of the Institutes of Gaius added vastly to our knowledge in the area of private law), but the modern study of Roman formalism begins with Rudolph von Jhering, who devoted to it a substantial section of his Spirit of the Roman Law. For him indeed Roman formalism, because it gave to acts in the law an otherwise unobtainable certainty of outline and because its decline in the late law coincided with the growth of imperial absolutism, was the “palladium of Roman liberty,” “the sworn enemy of the arbitrary,” and “the twin sister of freedom.” We in our time may not wish to go as far as this, but we cannot doubt that the use of forms, and in particular of verbal forms, lay at the heart of Roman law not only in the primitive period, when comparative legal history would lead us to expect it, but in the broad daylight of the classical period as well. It was only in the fourth century A.D. and later that imperial legislation set about eliminating it.
About the Author
Barry Nicholas. Formerly Principal of Brasenose College, Oxford and sometime Professor of Comparative Law in the University of Oxford.
Citation
66 Tul. L. Rev. 1605 (1992)