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87 Tul. L. Rev. 933 (2012-2013)

handle is hein.journals/tulr87 and id is 981 raw text is: The Method of the Roman Jurists James Gordley* The Roman juists developed a method that is not like that of Grekphilosophy modern physics, or economics. Their fundamental concepts were fanhar fim ordinary experience-for example, possession, faul4 and consent They were not abstracted from expenence lAke substance and accident mass and eneigg or supply and demand which arm understood only by those who have studed philosophy physics, or economics. The Romans rfined and identified these concepts byputting concete cases. They would move from a concept to its application in a particular case all at once without explaining how they got from the one to the other In contras4 philosophes, physicists, and economists defme their concepts and show their logical inplications. Itis hard for us to appreciate how dffernt tins method is from that of intellectual traditions with which we am more familiar Ilistonians have Anagined that they must have been usingsome differentmethod one borrowed fron the Gfeeks Yet the method was their own, and the concepts to which they applied it am now basic to law m the West and in much of the world besides. I. ROMAN LAw ....................................933 II. ROMAN LAW AND GREEK PHILOSOPHY ............. ....939 Ill. ROMAN LAW AND LATER CIvIL LAW ............. ......947 IV ROMAN LAW AND COMMON LAw .........................949 V A FINAL QUESTION ...............................953 I. ROMAN LAW Intellectual traditions have beginnings in time. Western philosophy began with the Greeks, modem physics with Galileo Galilei and Isaac Newton, and modem economics with Adam Smith. The intellectual tradition that shaped Western law began with the Roman jurists. This Article will describe the method by which they approached legal problems and the features that made that tradition unique. The Roman jurists, like those engaged in other intellectual disciplines, identified and refined a stock of concepts to explain a large and varied realm of experience. Alan Watson has spoken of the very high degree of conceptualization of Roman law.' Nevertheless, * © 2013 James Gordley. WR. Irby Chair in Law, Tulane University Law School. J.D., Harvard University; M.B.A., University of Chicago; B.A., University of Chicago. 1. ALAN WATSON, THE SPIRIT OF ROMAN LAW 90 (1995). That statement might seem squarely to contradict Peter Stein and Dietrich Behrens. Stein said that the Roman jurists did not consciously think of the law in terms of concepts; indeed the notion of a concept was not found in their mental equipment. PETER STEIN, REGULAE luRis: FROM JURISTIc RULES 933

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