One Step at a Time in Roman Law

This chapter argues that the Roman law system of a staged system of pleadings, which emerged in the mature formulary system and then was eventually carried over into the common law, offers a superior way to understand and classify legal doctrine in ways that lead to overall economic efficiency. The arguments here stress the conceptual formation of classical Roman law on matters that retain their full salience today. It does not deal with the details of the historical evolution of Roman procedure. Indeed, its main purpose is to contrast the genius of the staged system of Roman law pleading with a flaw in the modern conception of civil procedure, which funnels all disputes through a reasonableness inquiry. In dealing with practical legal disputes it is virtually impossible to generate some major rule that leads to optimal results in a wide range of cases. The pleading system takes the reverse tack and seeks to achieve optimality through a system of successive approximations, starting with the prima facie case, working through defenses, and most critically, replies and further pleadings, finishing with joinder of issue to incorporate all the elements that are traditionally thought relevant to systems of tortious (as the civil side of delict) and contractual responsibility. These elements include identifying those obligations that should be strict, those that are governed by negligence principles, and those as intentional harms on both the tort and contract side of the line. The approach should be understood as an explicit rejection of the dominant modern approach that removes all the hard-edge distinctions and uses a generalized conception of reasonableness as an umbrella conception that encourages decline of doctrine and the ad hoc resolution of particular disputes.