The moral menace of Roman law and the making of commerce: some Dutch evidence.

• Author: Whitman, James Q.

Did Roman law represent a kind of moral menace in premodern Europe, encouraging commercialism, greed, and exploitativeness, and fostering a lifeless "rationalism"? In one version or another, this idea has been accepted by Europeans for centuries. Petrarch was already warning his readers in the Middle Ages that the practice of Roman law was a nursery of corrupt and mercenary values;(1) and in the early-modern period many Europeans took the same view.(2) Even in modern times, some of our greatest legal historians have put their authority behind the idea that Roman law was somehow morally menacing. The most famous scholarly version of the idea came from Heinrich Brunner, who, around the turn of the century, described the spread of Roman law through medieval and early-modern Europe as the spread of "destructive infections."(3) But Brunner was not the only major scholar to mount this sort of claim. Max Weber, to choose the most important example, also ascribed destructive impact to the spread of "rationalistic" Roman law, though his tone was of course more sober than Brunner's;(4) and the same idea left its mark on the writings of Karl Marx(5) and Ferdinand Tonnies,(6) among others.(7) The idea has had a life in modem politics too. Through Marx, Engels, and Proudhon, it established itself in the general lexicon of socialist thought on the rise of capitalist society.(8) Not least, it made its way into the ideological underworld of the German far right wing: Point 19 of the Nazi party program denounced Roman law as a vector of the "materialistic world-order" and demanded its elimination.(9)

But venerable though this idea may be, it has largely dropped from sight since 1945, at least among professional legal historians. Most specialists today, I think it is fair to say, simply laugh, or grimace, at the idea that Roman law held some kind of moral menace for traditional values; and standard textbooks confidently reject any connection between Roman law and the rise of modern commerce.(10) The idea is particularly out of favor in Germany, where it has so many ugly associations with Nazi ideology.(11) But even legal historians who know little about the Nazi experience, I would guess, typically find the whole notion of studying the commercializing impact of Roman law to be pretty much passe. Certainly, legal historians see no sense in discussing the unsavory idea that Roman law had some kind of damaging effect on European morals.

Nevertheless, in this Article, I want to discuss this old idea seriously. I think it is time that we wrestle again with the venerable question of the link between Roman law and the morals of the "materialistic world-order."

Unsavory as this old idea may sometimes sound, there are (as the work of some medievalists has recently suggested(12)) important arguments to be made for the claim that Roman law laid some of the behavioral foundation for the rise of commercial society. And those arguments are not only important for our understanding of European legal history. This is an issue that goes to the heart of the rise of modem commerce. As I am going to try to show, discussing the question of the "morally corrupting" impact of Roman law, at first glance so bizarre, will help us approach a deeper question about the development of a commercial order: the question of the extent to which the legal history of commerce is a history, not just of the rise of functioning commercial institutions, but also of the rise of a commercial morality. More broadly, discussing the "morally corrupting" impact of Roman law will help us see the importance of a question that hovers over all legal historiography: the question of whether we can really disentangle the history of law from the history of ideas of good and evil, right and wrong.

I am going to begin by reviewing what the great legal historians of the nineteenth century said on this topic, sketching out some classic claims about how the spread of Roman law brought moral evil in its wake. I will concentrate on two charges against Roman law in particular: first, the charge that Roman law's "property absolutism" made it peculiarly "unbrotherly" or "uncommunal"; and second, the charge that Roman law was excessively "rationalistic." Both of these nineteenth-century charges had notable impact on the formation of classical sociology, and I will describe, if only briefly, how they worked their way into the theories of Tonnies and Weber. Both of these claims also had notable impact on the making of Nazi legal ideology. Both of them, as I will discuss, are generally dismissed, or simply ignored, by legal historians today.

After laying these classic charges out, I will turn to some new sources, in an effort to show that the classic idea that the spread of Roman law had a specifically moral impact is still worth investigating, even if the classic accounts of that impact are by no means clearly correct. I am not going to claim that the spread of Roman law "caused" the rise of commercial society, as some nineteenth-century scholars used to do. But I will argue that we can detect important links between the moral lessons of Roman law and the rise of commercial society.

In particular, I am going to argue that we can detect important links between Roman law and the rise of a kind of commercial morality at the scene of a major leap forward in the development of modem commerce: the seventeenth-century Netherlands (which I will generally call, using the ordinary shorthand, "Holland").(13) Holland has been strangely neglected in our literature. When legal historians discuss the problem of the connection between Roman law and the rise of commercial society, they almost invariably look to the cases of early-modern England or of the cities of the Hanseatic league; and they typically argue that since England and the Hansa had no Roman law, no connection between Roman law and the rise of commercial society can plausibly be drawn. As for the medievalists: They inevitably focus on the Middle Ages, believing that the growth of medieval trade can be equated with the rise of a modern commercial society. Yet, by the common consensus of historians, it was in seventeenth-century Holland, not in England or in the Hansa or in medieval Italy, that the most striking and seminal developments in the rise of a modem commercial order took place; and it is clear that we must turn much of our attention to Holland in discussing this question.

In discussing the rise of Dutch commercial society, I am going to focus on areas of law different from those that occupied the attention of nineteenth-century scholars. Nineteenth-century scholars largely concentrated on property law and on patterns of legal reasoning, attributing the evils of Roman law to its supposed "property absolutism" and its supposed "rationalism." By contrast, I am going to focus on more narrowly commercial topics: sales and bankruptcy law. I am also going to exploit a different sort of source than nineteenth-century historians typically used--vernacular guides to law and morality produced by practitioners and preachers in the early seventeenth century.

By the end of the Article, I will conclude that Roman law did indeed contribute something to the progress of what the nineteenth century called "unbrotherly" and "uncommunal" commercial values in seventeenth-century Holland. In particular, I will try to show that Roman law was linked to revolutionary changes in two critical areas of Dutch commercial law, neither of which has been understood by historians of commercial law: first, the Dutch abandonment of longstanding just-price principles; and second, the Dutch abandonment of traditional shame sanctions inflicted upon bankrupts. (With regard to just price in particular, I will try to show that the great Dutch commercial revolution was marked by an important, and neglected, evolution: a transition from the regulation of price to the regulation of quality.) In the areas both of just price and of bankruptcy, Roman law encouraged critical changes in commercial morality; and if we understand these little-understood points, I will argue, we will see that the spread of Roman law was indeed a large factor in the rise of a very new kind of commercial society.

In short, Roman law was connected with important changes in moral perceptions, just as Petrarch, Brunner, Weber, and so many others (among them, sadly, the Nazis) claimed; the history of law is connected with the history of morals. But that does not mean that the grand old prewar tradition of Marx, Weber, Tonnies, and the rest--what I will call the classic tradition--was wholly correct; just as it certainly does not mean that the Nazis were correct. The classic tradition, I will conclude, fell prey to two important errors of interpretation. First of all, the classic tradition made a significant nationalistic error, interpreting European legal history as a conflict between Roman and Germanic law, when in fact the great conflict was much more one between Roman and Christian law. Second, and more broadly, the classic tradition ultimately overstated the moral impact of Roman law. Pre-1945 authors, whether on the right wing or the left, liked to speak as though the spread of Roman texts had altered the very behavioral structure of European societies--as though the mere availability of Roman law had, ipso facto, induced Europeans to conduct themselves and perceive the world differently, causing them to be more "unbrotherly," or more "acquisitive," or more "rational." But we must recognize that the impact of Roman law was more modest than that. The appearance of Roman law in a society did not, as such, induce anyone to behave differently. What was important about the spread of Roman law, I will argue, was simply that it made available one set of normative justifications for commercial behavior--behavior whose ultimate social-psychological sources must, however, be sought outside the confines...