Chapter 2: Judging and legal reasoning today (‘official portrait’) (1)
Roman law might not be directly relevant to the common law but it was the basis of European ‘legal science’. This science was to be very influential on common law thought during the 19th century which saw the abolition of the forms of action. Thus Roman legal thinking, as developed by the medieval and later jurists, helped shape what might be called the models of legal reasoning. Various models, as we have seen (see 1.9), can be traced back to the Roman lawyers as interpreted by the later European jurists. The Digest of Roman law largely consists of practical cases. The Romans developed a whole range of legal concepts such as ownership, possession, contract and so on but rather than define them they preferred to test them with reference to factual examples. Nevertheless the very last title to the Digest is called De regulis iuris, which means ‘rules of law’. Thus if one asks what it is to have legal knowledge, the answer that one might often receive – although not from the Romans themselves (see D.50.17.1) – is this. Law is a matter of rules; and thus learning the law is learning and applying legal rules. There are plenty of legal theorists who subscribe to and support this vision of legal knowledge. The primary function of a judge is, accordingly, to find and to apply the appropriate rules to the relevant facts of a litigation dispute.
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