Day 717 – Ken here (W)(8-31-2011)
(DEF II, v.4 Ch.44 pp.820-830)(pages read: 1880)
A slow day of Roman Mortgages among other things. You’ll see…
Law-Justinian’s Institutes-Part 2- THINGS
Law-Justinian’s Institutes-Part 2-Things PROPERTY
Gibbon gives a long introduction to the idea of property by tracing (a la John Locke a kind of rational superstructure of property law built on the dynamics of a primitive nomadic/agricultural society, and extrapolating upwards to the eventual Roman Republic (and presumably his own Late Eighteenth Cent. soc.)
self-love alone supplies society, and civil govt and exclusive property supports this and becomes indispensable
idea of property – simple, uniform, absolute dominion over a thing
ownership can be separated from USE – ie sale versus lease of a thing to someone else
Law-Justinian’s Institutes-Part 2-Things WILLS INHERITANCE
Any discussion of property, esp Roman Property devolves quickly into a discussion of inheritance – the Romans were maniacs about inheritance – forbidding it, allowing it, defining it, limiting it – a common punishment in Rome was to revoke inheritance – how often in the penal codes in the U.S. is the penalty for a crime, the inability to make a will? This is the stuff I love – when you hit something that seems to make no/little sense – then you know you’ve hit a real cultural divide
Inheritance was by law – ie you got what the law allowed and that was it – unless there were a LEGACY – ie a separate division – also in inheritance you got both debts and assets – you could refuse an inheritance
Any discussion of inheritance quickly devolves into a long digression on COGNATES and AGNATES – ways you were related to the deceased – which affected how much you got – IN SHORT – an AGNATE (the best way to be related) was through only the male line, COGNATES were thru the female line – so your sister/sister’s family had very little chance of inheriting (*being female) – all this AGAIN is a religious view – religion determined inheritance – religion/inheritance was based on the eldest male sacrificing at the household altar – no women could ever be included in that calculation
The COGNATE/AGNATE, Gentiles (past brothers – ie bros of grandfathers etc – same gens (family) but an offshoot) – all becomes immensely complicated – the more so as the Romans completely forgot WHY it was important – by the time of Christian Justinian the Ideas of AGNATE/COGNATE were absolutely opaque – and most of that inher. law was obsolete anyway by then
INTRODUCTION OF WILLS, LEGACIES – gradually the state allowed the deceased to list who got what – with many many restrictions – and many “abuses” occurred like willing all the assets to one person, all the debts to another – entailing even more complicated laws – in the U.S. the ESTATE has to satisfy the debts 1st, before assets can be given to persons – this is the drift of Roman law also – (which, dear blog-reader, is probably partially the reason why our laws are like that – U.S. law is based on English Law, which takes as a distant starting point for some things – the very INSTITUTES Gibbon was reading
Law-Justinian’s Institutes-Part 2-Things CODICILS TRUSTS
Eventually, to get things done the way you wanted them, the idea of a trust – a third party holding property on behalf of a first party, for the benefit of a second party
A Codicil (apparently – I’d never really thought about this word before) is (nowadays) an amendment to a previous will
Wills and Codicils are important stuff before/in Gibbon’s day and into the 19th century – huge inheritances/aggregations of money in England were transferred by wills – often with minute requirements on specific actions the inheritors must take to get/keep the wealth – which Gibbon says was not allowed in Roman times – and with which (its dis-allowance) he heartily approves
Law-Justinian’s Institutes-Part 3 ACTIONS
Law-Justinian’s Institutes-Part 3-ACTIONS – Promises
Gibbon notes that Justinian divides Actions or OBLIGATIONS into 4 categories – by thing, word, letter, agreement – Gibbon divides HIS into 3 parts – Promise, Benefit, Injury – I have to think, although Gibbon LIKES his better (see footnote 158) he probably OUGHT TO HAVE stuck with the INSTITUTE’s divisions – after all – it IS Justinian’s textbook on law, they probably knew what they were teaching
IN Roman law if you made a PROMISE before witnesses you were obligated to fulfill it – something that is NOT true in the U.S. today – you have to have a contract to be able to sue someone to force follow-through or get damages – not a one-sided promise only
Law-Justinian’s Institutes-Part 3-ACTIONS – Benefits – Sales, Loans, Leases, Mortgages (hypoteca)
Benefits would mean a CONTRACT to us – ie there is a back and forth – something given, something received
This includes giving the USE of something (a lease/rental), or a contract to buy real estate – a ROMAN HYPOTECA – THIS IS STILL THE WORD IN SPANISH FOR A MORTGAGE
Law-Justinian’s Institutes-Part 3-ACTIONS – Benefits – Interest, Usury
And inevitably, any discussion of law and business becomes a discussion of Interest
Although Christianity was hostile to interest to say the least (MONEY IS BARREN and CANNOT INCREASE by itself), right through the Middle Ages in the West, Roman Law took a more practical view – and this view prevailed in the more cosmopolitan East, so interest on money loans was allowed
Usury was set at an interesting 4% for rich people, 6% for the general population, 8% for merchants/manufacturers, 12% for nautical insurance – ANY 24.99%+++ like most credit card companies charge would have been enough to shut the company down – I guess it shows what kind of fools we are today, that even the money-mad, greed-crazed Roman Senatorial aristocracy were limited to just 4%
Living Roman Law - the Hypoteca - You Can't Get More Byzantine (ie East Roman) Than Russia These Days - why? they are the spiritual and in some ways political inheritors of Byzantine civilization (after the final Fall of Constantinople in 1453 - still 900 years off for us) - and here is our old friend - the HYPOTECA (pledge of surety for a loan - a mortgage - that's the word hypoteca the 2nd word down in Cyrillic)
Small Survivals – The Hypoteca
Hypoteca (hypo-under, theka(tithenai)-place = placed under) is the broad Roman Law word for a surety given as a pledge – like bail given to ensure attendance, or a deed given to someone to ensure payment on a loan. In that sense, Roman Law from the 530’s, summarizing Republican laws of a 1000 years before is fossilized in modern society – in most European countries (incl Russia) a hypoteca is a special pledge – of land given as a pledge to pay money – what we term a mortgage.
Interesting – well, at least to me…especially when you see all the spanish-language signs offering low-rate mortgages now with hypoteca plastered all over them. But I digress…
File this under Unlooked-For-Modern-Survivals-From-Our-Roman-Past
And here, actually, is a Spanish HYPOTECA advertisement - this really from Spain, although I probably could have just as easily have come up with one from my native country of California - just by rolling down the car window and taking a pic of a billboard
Now - could this face lie to you? Portrait of Edward Gibbon by Joshua Reynolds 1779 (reversed)
A Rant on Gibbon’s Pride – Why This 40 Page Tangent on Roman Law?
I have to say, unless provoked and required to do so, I am not a great fan of forced law-reading. I’m just a little baffled trying to understand why Gibbon spent a great deal of time on all this. It does fascinate in a sociological/anthropological sense, but I’m trying to imagine GIBBON’s motivation, imagining his English-Gentleman-Reader’s reactions, to a long discourse on European law. And I’m just not getting it.
He was obviously very proud of his the fruit of his toil in the difficult fields of Roman Civil Law – he was reviewing the Institues – the TEXTBOOK which INTRODUCED students to the theory and practice of Roman Law – and in the section on Actions – he abandons Gaius (his treatise of the 130’s) and the “normal” and “historical” understanding of Roman Law and MAKES UP HIS OWN LEGAL THEORY and WRITES IT DOWN IN A BOOK (this book – this chapter, the 44th chapter of the Decline And Fall Volumne 4). He is nothing if not audacious – and you have to give him credit for it.
I guess it’s not such a big deal, but I, for one, was totally taken in. I thought I was reading Gaius and Justinian’s understanding of Roman Law from 1500 years ago, but I find instead, I’m reading an armchair-continental-lawyer’s version of what they MEANT/SHOULD HAVE said to make it clearer. Truly it is a DECONSTRUCTIONIST experience – Gibbon wrote down a syllabus of Ancient Roman Law, as HE would have taught it, in the 530’s, from his English, Enlightenment, 18th cent. perspective. Audacious.
Here is the footnote (he confesses it, buried in a footnote)
III OF ACTIONS.
III. The general duties of mankind are imposed by their public and private relations: but their specific obligations to each other can only be the effect of, 1. a promise, 2. a benefit, or 3. an injury: and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle, the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice. (158)
The Institutes of Caius, (l. ii. tit. ix. x. p. 144 – 214,) of Justinian, (l. iii. tit. xiv. – xxx. l. iv. tit. i. – vi.,) and of Theophilus, (p. 616 – 837,) distinguish four sorts of obligations – aut re, aut verbis, aut literis, aut consensû: but I confess myself partial to my own division.
(DEF II, VOl.4, Ch.44 P.827, fn 158)