Historical Perspectives

Abstract

This chapter argues that the history of classical jurisprudence can offer a useful stimulus or lead in the development of the New Private Law as it explores the potential of doctrinal reasoning. Two general observations pertain here. The first is that lawyers in both continental and common-law traditions have built on traditional legal heuristics developed in second- and third-century Rome, endlessly adapting and applying these categories in the centuries since. The chapter then uncovers the Roman institutionalist heuristics and suggests that knowledge of these remains desirable for any lawyer seeking to wield legal doctrine as a technique of social decision and ordering. The second major point is that classicism—the deployment of precedent using organizing typologies established by legal tradition—was not always or only a conservative praxis aiming to limit the political authority of the judge. The opposite could be true: classical legal tradition could be highly adventurous, granting jurists the confidence and legitimacy to launch grand experimentation in the ordering and reform of society. Historical jurisprudence was often joined with legal rationalization projects taking the form of treatises, restatements, and codifications aiming to summarize and make available the fruits of past law for modern users.