REVIEWS
| Date | 01 July 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00939.x |
| Published date | 01 July 1992 |
REVIEWS
Reinhard Zimmermann,
The Law
of
Obligations: Roman Foundations
of
the
Civilian Tradition,
Cape Town: Juta
&
Co,
1990,
lxiv
1241 pp, f75.00 hb.
Had Professor H .F. Jolowicz survived to take his
Roman Foundurions
of
Modern
Law
(Oxford, 1957) up to and beyond the law of obligations, modern English,
if
not continental, law schools would have had a fundamental reference point against
which they could have tested the viability of an English law of obligations. But
he did not. And, as a result, there has been a gap
in
English language scholarship
which seems to have become ever more noticeable since legal historians started
to switch the emphasis of the history of the common law from the medieval to the
modern period. There was, particularly during the nineteenth century, clearly some
relationship between civilian learning and English judicial reasoning, but where the
focal point of this relationship is to be located turns out to be a much more difficult
question.
Is
it
in
the rules, institutions
or
concepts used by the judges?
Is
it
in
the
judges themselves and their reading? Is
it
in
the textbook tradition?
Or
is
it
in
the
habits of mind and methodologies associated
with
legal technics
in
industrialist
economies? In fact, as several German jurists have noticed, once one starts asking
these kinds of questions, the relationship between civil and common law itself
becomes ever more ambiguous since, at the level of methodology, the divide seems
less of a dichotomy between two legal families and more of a contrast between pre-
and post-Enlightenment reasoning techniques. This suggests that the ‘inner
relationship’ between English and Roman law, noticed by Pringsheim
in
1935, is
as much epistemological as historical.
It
is against this background that Professor Zimmermann’s seemingly large
historical work on the law of obligations promises a major contribution to English
language scholarship. It is promising no less than the ‘Roman Foundations of the
Civilian Tradition’ and thus, at first sight, would appear to be taking up where the
late Professor Jolowicz left off. Here, however, the potential reader must
be
warned.
Certainly, Professor Zimmermann
will
provide the reader with well over a thousand
pages of text devoted to the history of the law of obligations and this history does
not stop with the death of Justinian. Yet the book is not a work
in
the Jolowicz
tradition as such, despite the fact that Zimmermann’s main aim is to show how
‘our way of thinking about law
(in
the present context, more specifically about the
law of obligations) has been decisively moulded by the Roman lawyers’ (p
viii).
Jolowicz, indeed, wanted to explain the Roman system in so far as
it
has become
the basis of modem law, but his main thrust was towards the theoretical and classifi-
catory work done since Roman times with the object of showing how continental
law is a science which, despite the wide differences, uses to a large degree the same
conceptions explicable
with
reference to Roman rules and institutions. Now, one
cannot, of course, criticise a book on the basis that
it
is not like another
or
that
its author was not fulfilling aims set by another. Yet any book that attempts to bring
together common law and Roman law (pp
x-xi)
is faced with the perennial problem
of just what this relationship is and exactly where
it
is to be located, and this
in
turn
will
be much affected by the level at which such a work on the history of a
legal doctrine is pitched.
In
founding his work largely (although not exclusively)
in
the details of the Roman law itself, rather than
in
the interpretation of this legal
science by the later civilian tradition, Zimmermann runs the risk of failing to provide
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