Pub Date : 2020-05-28DOI: 10.1093/oso/9780198787204.003.0011
Dennis P. Kehoe
This chapter examines the role that the contract of mandate (mandatum) and the related institution of “unauthorized administration” (negotia gesta) played in Roman economic life. Mandate represented a major form of agency in Roman society, but it presents problems of incentives because it was uncompensated: the agent might carry out significant tasks for the principal, or mandator; these tasks might involve considerable expense and even financial risk on the part of the agent, but the agent was not to profit from his service. On the basis of juridical evidence from the Digest and the Code of Justinian, I examine how mandate transformed a relationship that had its roots in upper-class Roman notions of friendship and reciprocity into a contractual form that remained useful as it provided property owners advantages with high-valued financial transactions, such as the purchase of property. In addition, it provided a useful way for Roman businesspeople to overcome problems of information in the credit market.
{"title":"Mandate and the Management of Business in the Roman Empire","authors":"Dennis P. Kehoe","doi":"10.1093/oso/9780198787204.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198787204.003.0011","url":null,"abstract":"This chapter examines the role that the contract of mandate (mandatum) and the related institution of “unauthorized administration” (negotia gesta) played in Roman economic life. Mandate represented a major form of agency in Roman society, but it presents problems of incentives because it was uncompensated: the agent might carry out significant tasks for the principal, or mandator; these tasks might involve considerable expense and even financial risk on the part of the agent, but the agent was not to profit from his service. On the basis of juridical evidence from the Digest and the Code of Justinian, I examine how mandate transformed a relationship that had its roots in upper-class Roman notions of friendship and reciprocity into a contractual form that remained useful as it provided property owners advantages with high-valued financial transactions, such as the purchase of property. In addition, it provided a useful way for Roman businesspeople to overcome problems of information in the credit market.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128858870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-28DOI: 10.1093/oso/9780198787211.003.0023
Thomas J. Miceli
The concept of collective responsibility, or group punishment, for crimes or other harmful acts, was a pervasive feature of ancient societies, as exemplified by the Roman Senatus Consultum Silanianum, a resolution by the Roman senate in 10 CE, and the Greek notion of “pollution.” This chapter briefly surveys historical examples of collective responsibility, which have largely given way to the modern concept of individual responsibility, though vestiges of collective responsibility remain in modern culture and law (notably in the form of vicarious liability). The chapter then lays out a theoretical analysis of the choice between collective and individual responsibility that highlights those circumstances in which each is preferred as a law enforcement strategy.
{"title":"Collective Responsibility","authors":"Thomas J. Miceli","doi":"10.1093/oso/9780198787211.003.0023","DOIUrl":"https://doi.org/10.1093/oso/9780198787211.003.0023","url":null,"abstract":"The concept of collective responsibility, or group punishment, for crimes or other harmful acts, was a pervasive feature of ancient societies, as exemplified by the Roman Senatus Consultum Silanianum, a resolution by the Roman senate in 10 CE, and the Greek notion of “pollution.” This chapter briefly surveys historical examples of collective responsibility, which have largely given way to the modern concept of individual responsibility, though vestiges of collective responsibility remain in modern culture and law (notably in the form of vicarious liability). The chapter then lays out a theoretical analysis of the choice between collective and individual responsibility that highlights those circumstances in which each is preferred as a law enforcement strategy.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133080409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-28DOI: 10.1093/oso/9780198787211.003.0012
G. Miller
This chapter provides a broad overview of the chapters in the second volume of Roman Law and Economics. The subjects addressed in this volume include slavery and the Roman economy credit, property, dispute resolutions, and remedies, and finally wrongdoing and Roman law. The focus of my discussion is on the role that economic theory plays in the work of the various authors, who represent ancient historians, scholars of Roman law, lawyers, and economists. The chapter will provide a perspective on the contents of the book as a whole and will seek to explain why economic methods are a fruitful way to understand Roman law.
{"title":"Rome and the Economics of Ancient Law II","authors":"G. Miller","doi":"10.1093/oso/9780198787211.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198787211.003.0012","url":null,"abstract":"This chapter provides a broad overview of the chapters in the second volume of Roman Law and Economics. The subjects addressed in this volume include slavery and the Roman economy credit, property, dispute resolutions, and remedies, and finally wrongdoing and Roman law. The focus of my discussion is on the role that economic theory plays in the work of the various authors, who represent ancient historians, scholars of Roman law, lawyers, and economists. The chapter will provide a perspective on the contents of the book as a whole and will seek to explain why economic methods are a fruitful way to understand Roman law.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122636942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-28DOI: 10.1093/oso/9780198787211.003.0017
Robert C. Ellickson
In 200 BC, the population of the city of Rome was 200,000. By AD 50, this figure had increased fivefold, an unprecedented burst of urban expansion. Moses Finley’s much-contested thesis that Rome was parasitic implies that the city’s growth could only have brought discomfort to the peoples of the Mediterranean. Drawing on the theory of cities developed by urban economists, I contest Finley’s thesis. Rome’s growth fostered specialization of labor and the sharing of information, enabling the city to export the Pax Romana, government, law, literature, and other beneficial services. The institutional foundations that undergirded the growth of Rome included norms and laws favoring brisk commerce in land. A provision of the Twelve Tables of c.450 BC, for example, authorized complete freedom of testation, an extraordinary principle in a near-archaic society. Also conducive was Rome’s adroit mix of a private sector that provided goods such as the apartment blocks that housed most of the population, and a public sector that provided essential public goods such as aqueducts. These institutional choices, along with Rome’s aversion to growth-limiting populist policies, were necessary, but not sufficient, conditions for its emergence as the largest city the world had seen.
{"title":"Ancient Rome","authors":"Robert C. Ellickson","doi":"10.1093/oso/9780198787211.003.0017","DOIUrl":"https://doi.org/10.1093/oso/9780198787211.003.0017","url":null,"abstract":"In 200 BC, the population of the city of Rome was 200,000. By AD 50, this figure had increased fivefold, an unprecedented burst of urban expansion. Moses Finley’s much-contested thesis that Rome was parasitic implies that the city’s growth could only have brought discomfort to the peoples of the Mediterranean. Drawing on the theory of cities developed by urban economists, I contest Finley’s thesis. Rome’s growth fostered specialization of labor and the sharing of information, enabling the city to export the Pax Romana, government, law, literature, and other beneficial services. The institutional foundations that undergirded the growth of Rome included norms and laws favoring brisk commerce in land. A provision of the Twelve Tables of c.450 BC, for example, authorized complete freedom of testation, an extraordinary principle in a near-archaic society. Also conducive was Rome’s adroit mix of a private sector that provided goods such as the apartment blocks that housed most of the population, and a public sector that provided essential public goods such as aqueducts. These institutional choices, along with Rome’s aversion to growth-limiting populist policies, were necessary, but not sufficient, conditions for its emergence as the largest city the world had seen.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116909733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-28DOI: 10.1093/oso/9780198787204.003.0002
R. K. Fleck, F. Hanssen, Dennis P. Kehoe
A large and growing literature on “endogenous” institutions seeks to understand the circumstances under which institutions of particular types arise. One of the literature’s guiding principles is that, because institutions structure the incentives that members of a society face, if institutions are not well matched to a society’s circumstances—that is to say, not designed to inspire productive activities, broadly defined—the society will not thrive. We will discuss how this approach can help modern scholars understand the institutions of the Roman Empire, a society that clearly did thrive. The focus of this paper will be on the Roman imperial government’s policies that promoted the private ownership of land. These policies were crucial to the efforts of the Roman imperial government to create a class of landowners in the cities across the empire who would share in the burdens of ruling the empire. However, the extent to which landowners could dispose of their properties freely was limited by the overall constraints of an ancient agrarian economy and the fiscal requirements of the Roman state.
{"title":"What Can the Endogenous Institutions Literature Tell Us About Ancient Rome?","authors":"R. K. Fleck, F. Hanssen, Dennis P. Kehoe","doi":"10.1093/oso/9780198787204.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780198787204.003.0002","url":null,"abstract":"A large and growing literature on “endogenous” institutions seeks to understand the circumstances under which institutions of particular types arise. One of the literature’s guiding principles is that, because institutions structure the incentives that members of a society face, if institutions are not well matched to a society’s circumstances—that is to say, not designed to inspire productive activities, broadly defined—the society will not thrive. We will discuss how this approach can help modern scholars understand the institutions of the Roman Empire, a society that clearly did thrive. The focus of this paper will be on the Roman imperial government’s policies that promoted the private ownership of land. These policies were crucial to the efforts of the Roman imperial government to create a class of landowners in the cities across the empire who would share in the burdens of ruling the empire. However, the extent to which landowners could dispose of their properties freely was limited by the overall constraints of an ancient agrarian economy and the fiscal requirements of the Roman state.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116343258","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-28DOI: 10.1093/oso/9780198787211.003.0014
E. Koops, G. Dari‐Mattiacci, D. Kehoe
Roman slaves often had to meet expressly negotiated conditions to obtain their freedom. The use of such conditions helps to explain why the Romans freed so many slaves. They are an expression of the economic considerations that underlie the extraction and manumission model of Roman slavery. Agreements between masters and slaves occurred in practice and were recognized at law. Conditions could be set among the living or by testament and could consist of settling accounts, money payments, or services in kind; some followed the slave and were actionable. The money to pay for freedom often came from the slave’s patrimony or peculium. Though evidence is scarce, conditions and the corresponding manumission prices seem to have been of a type that could be met within years rather than decades. Extracting a price from slaves for their freedom lessened the future claims of patrons. For a certain type of slave, negotiated manumission conditions may have been the norm.
{"title":"The Practice of Manumission through Negotiated Conditions in Imperial Rome","authors":"E. Koops, G. Dari‐Mattiacci, D. Kehoe","doi":"10.1093/oso/9780198787211.003.0014","DOIUrl":"https://doi.org/10.1093/oso/9780198787211.003.0014","url":null,"abstract":"Roman slaves often had to meet expressly negotiated conditions to obtain their freedom. The use of such conditions helps to explain why the Romans freed so many slaves. They are an expression of the economic considerations that underlie the extraction and manumission model of Roman slavery. Agreements between masters and slaves occurred in practice and were recognized at law. Conditions could be set among the living or by testament and could consist of settling accounts, money payments, or services in kind; some followed the slave and were actionable. The money to pay for freedom often came from the slave’s patrimony or peculium. Though evidence is scarce, conditions and the corresponding manumission prices seem to have been of a type that could be met within years rather than decades. Extracting a price from slaves for their freedom lessened the future claims of patrons. For a certain type of slave, negotiated manumission conditions may have been the norm.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"49 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122745339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-28DOI: 10.1093/oso/9780198787204.003.0008
Henry Hansmann, Reinier H. Kraakman, Richard Squire
This chapter analyzes ancient Rome’s law of business entities from the perspective of asset partitioning, the delimiting of creditor collection rights based on the distinction between business assets and personal assets. Asset partitioning, which is an essential legal attribute of modern business forms such as the partnership and the business corporation, reduces borrowing costs by simplifying credit-risk assessment and expediting insolvency proceedings. The chapter finds that ancient Roman business arrangements, such as the societas and the slave-run business endowed by the slaveowner with a peculium, did not give business creditors the first claim to business assets, making these forms of organization non-entities according to the criterion of asset partitioning. It appears that the only true legal entity used to form profit-seeking firms was the societas publicanorum, which roughly resembled the modern limited partnership. But use of that form was generally confined to firms that provided public services under contract with the state. Moreover, the societas publicanorum was essentially a creature of the Republic, and was largely abandoned during the Empire. Although Rome had a complex economy and sophisticated commercial law, and was familiar with most of the types of asset partitioning seen in modern legal systems, it ultimately failed to develop legal entities for general use in commerce. Apparent reasons include the Roman aristocracy’s disparagement of commerce, the emperors’ wariness of strong organizations outside the state, and the society’s continuing reliance on the family—a durable and complex legal entity in its own right—to handle many commercial needs.
{"title":"Incomplete Organizations","authors":"Henry Hansmann, Reinier H. Kraakman, Richard Squire","doi":"10.1093/oso/9780198787204.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198787204.003.0008","url":null,"abstract":"This chapter analyzes ancient Rome’s law of business entities from the perspective of asset partitioning, the delimiting of creditor collection rights based on the distinction between business assets and personal assets. Asset partitioning, which is an essential legal attribute of modern business forms such as the partnership and the business corporation, reduces borrowing costs by simplifying credit-risk assessment and expediting insolvency proceedings. The chapter finds that ancient Roman business arrangements, such as the societas and the slave-run business endowed by the slaveowner with a peculium, did not give business creditors the first claim to business assets, making these forms of organization non-entities according to the criterion of asset partitioning. It appears that the only true legal entity used to form profit-seeking firms was the societas publicanorum, which roughly resembled the modern limited partnership. But use of that form was generally confined to firms that provided public services under contract with the state. Moreover, the societas publicanorum was essentially a creature of the Republic, and was largely abandoned during the Empire. Although Rome had a complex economy and sophisticated commercial law, and was familiar with most of the types of asset partitioning seen in modern legal systems, it ultimately failed to develop legal entities for general use in commerce. Apparent reasons include the Roman aristocracy’s disparagement of commerce, the emperors’ wariness of strong organizations outside the state, and the society’s continuing reliance on the family—a durable and complex legal entity in its own right—to handle many commercial needs.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127928789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-28DOI: 10.1093/oso/9780198787204.003.0003
E. Posner
The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it was very different from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in popular assemblies; and a group of magistrates, led by a pair of consuls, proposed bills, brought prosecutions, served as judges, led military forces, and performed other governmental functions. This chapter analyzes the Roman constitution from the perspective of agency theory, and argues that the extensive checks and balances, which were intended to prevent the recurrence of monarchy, may have gone too far. Suitable for an earlier period in which the population was small and the political class was homogenous, the constitution proved unworkable when Rome acquired a vast, diverse empire. The lessons of Roman constitutionalism for the American constitution are also discussed.
{"title":"The Constitution of the Roman Republic","authors":"E. Posner","doi":"10.1093/oso/9780198787204.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780198787204.003.0003","url":null,"abstract":"The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it was very different from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in popular assemblies; and a group of magistrates, led by a pair of consuls, proposed bills, brought prosecutions, served as judges, led military forces, and performed other governmental functions. This chapter analyzes the Roman constitution from the perspective of agency theory, and argues that the extensive checks and balances, which were intended to prevent the recurrence of monarchy, may have gone too far. Suitable for an earlier period in which the population was small and the political class was homogenous, the constitution proved unworkable when Rome acquired a vast, diverse empire. The lessons of Roman constitutionalism for the American constitution are also discussed.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121596906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
F. Parisi, Daniel Pi, Barbara Luppi, Iole Fargnoli
Ancient laws addressed all types of wrongdoing with a single set of remedies that over time pursued a changing mix of retaliatory, punitive, and compensatory objectives. In this paper, we consider the historical transition from retaliatory to punitive justice, and the subsequent transition from punitive to compensatory justice. This paper shows how the optimal level of enforcement varies under the three corrective regimes. Crimes that create a larger net social loss require lower levels of enforcement under retaliatory regimes. The optimal level of enforcement is instead independent of the degree of inefficiency of the crime when punitive and compensatory remedies are utilized. The paper provides several historical illustrations and sheds light on some of the legal paradoxes of ancient law.
{"title":"Deterrence of Wrongdoing in Ancient Law","authors":"F. Parisi, Daniel Pi, Barbara Luppi, Iole Fargnoli","doi":"10.2139/SSRN.2510080","DOIUrl":"https://doi.org/10.2139/SSRN.2510080","url":null,"abstract":"Ancient laws addressed all types of wrongdoing with a single set of remedies that over time pursued a changing mix of retaliatory, punitive, and compensatory objectives. In this paper, we consider the historical transition from retaliatory to punitive justice, and the subsequent transition from punitive to compensatory justice. This paper shows how the optimal level of enforcement varies under the three corrective regimes. Crimes that create a larger net social loss require lower levels of enforcement under retaliatory regimes. The optimal level of enforcement is instead independent of the degree of inefficiency of the crime when punitive and compensatory remedies are utilized. The paper provides several historical illustrations and sheds light on some of the legal paradoxes of ancient law.","PeriodicalId":243840,"journal":{"name":"Roman Law and Economics","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128963698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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