Law in books versus law in action. On controversies surrounding inheritance agreements in Roman law

Competition: SONATA 15 NCN

Granted amount: 221 860 PLN

Project start date: 2020-07-14

Project end date: 2024-07-13

Law belongs to the world of ideas, the world of doctrines: it tells us how we should behave: what is permitted and what is forbidden. Consequently, legal norms describe certain intentions of the legislator, rather than how the law actually functions. For this reason, law applied on a daily basis may significantly differ from its literal wording. It seems useful to recall here the term coined by the American jurist Roscoe Pound (1870-1964), that there exists “law in books” and “law in action”. Although R. Pound used this bon mot to capture the essence of law at the turn of the 20th century in the United States of America, his observation also seems most useful in research on Roman law.

The aim of this project is to verify the prevailing opinion among contemporary Roman law scholars that the Romans rejected any form of agreement as an instrument for transferring property upon death. For the purposes of this study, the working hypothesis adopted is that Roman law "in action" was familiar with various types of agreements concluded to regulate property succession upon death, even if Roman law "in books" presents a completely different view.

The research project will be carried out using the traditional set of methods employed in Roman law studies. The first step will be to create a list of collections of ancient legal sources to be examined (e.g., Digesta, Codex Justinianus, Institutes of Gaius, Fragmenta Vaticana). Their preliminary reading will precede the selection of relevant texts. The structure of the Corpus iuris requires that the selected source texts be re-systematised, taking into account the legal institutions they describe and the time of their creation. The analysis of Roman legal and jurisprudential texts (i.e., exegesis) should allow for a proper understanding of their legal content. The use of contemporary literature on the subject will be particularly useful at this stage of the research. The project will culminate in an attempt to identify certain regularities among the examined texts, and an attempt to answer the research questions posed.

There are at least several reasons why this topic should be chosen. Firstly, there is the curiosity regarding the motives behind the alleged prohibition of transferring property upon death in the form of an agreement. Roman law scholarship almost unanimously declares that such agreements were contrary to good morals and thus invalid. Surprisingly, this view is supported by an extremely scarce amount of sources (e.g., D. 45.1.61, Iul. 2 Urs. Fer.), which do not contain convincing justification. Was this issue not discussed by the Romans? Roman law is known for its discursive character and the fact that the opinions of Roman jurists often contradicted each other (ius controversum). Sources both influenced and reflected the socio-economic reality. Moreover, even a superficial reading of Roman legal sources yields results openly contrary to the aforementioned thesis of Roman law scholarship (e.g., D. 2.14.40.3, Pap. 1 resp.; D. 39.6.42, Pap. 13 resp.). These describe various types of agreements concluded to ensure the transfer of property after death. Thirdly, in the background of the undertaken research is the conviction (expressed in foreign literature) that the Romans faced similar problems to those we face today. They inquired about ways to ensure property succession and the binding force of decisions expressed in the form of agreements and wills. Contemporary demographic and social changes also challenge the traditional understanding of inheritance law, as evidenced by recent reforms of the law in Europe (e.g., in Belgium).

This project is expected to yield interesting results. The planned research problem has not yet been examined and presented to such an extent in Polish scholarship. Regardless of whether the research hypothesis is confirmed or not, the undertaken research will allow for an outlining of the discussion on the place of agreements in planning succession upon death in Roman law and the Romanistic tradition. The analysis of Roman legal sources will show what arguments jurists used and which of their choices proved particularly problematic.

Although the research project concerns non-current law, the fundamental value of Roman law speaks for considering its legacy in contemporary philosophical and dogmatic discussions on the role of individual interest and the binding force of one's will in transferring property upon death.