Abstract
Did Roman jurists include economic considerations in their decisions and justifications ? The question is at the heart of a historiographical debate. In the XIXᵉand XXᵉ centuries, in the tradition of Savigny and the" Isolierung ", Roman jurists were seen as technicians isolated from the social context, developing an autonomous, abstract science. Over the past twenty years, particularly in the United States, the opposite view has taken hold : jurists are said to have participated in the expansion of the market by creating institutions that foster trade. But to avoid projecting our current values, it is essential to stick to the sources.
The analysis distinguishes two registers of justification in the texts of Roman jurists. The ratio legis retrospectively describes the raison d'être of a law or an edict clause, while the ratio decidendi designates the criterion that prospectively grounds a decision in a concrete case. Thus, for example, in D. 3.1.1.5 (book VI On the edict), Ulpian explains that the prohibition on women applying for other people's jobs is based on female pudicitia : this is a ratio legis (with a euphemistic tendency). Conversely, in D. 19.2.9.1 (book XXXII On the edict), the question of rent payment after the death of a usufructuary leads to a solution qualified by the word aequissimum : rent is due for the period of actual enjoyment, according to a principle " d'équilibre ". This is a ratio decidendi.
An analysis of the rationes edicti, i.e. the rationale behind the clauses of the praetor's edict, enables us to study with particular precision the way in which Roman jurists identified the ratio legis and the role, or rather the absence of a role, played by economic considerations in the modern sense. In some forty passages of the Digest, jurists refer to the edict in terms of aequum (13), aequitas naturalis (9), utilitas (17), iustum (2) or providentia (1).Aequitas refers in particular to the prohibition of unjust enrichment, reciprocity of benefits and burdens, equality before the law, and the protection of good faith.Aequitas naturalis adds a dimension linked to human nature, such as the protection of minors or consanguinity. As forutilitas, it may be aimed at the smooth running of the procedure, the protection of a weaker contracting party or collective interests such as traffic or public health. Only one case of ratio edicti clearly evokes an economic interest, when the lender protects the concessionaires of public goods in order to guarantee tax revenues.
The example of maritime transport (D. 14.1.1 pr. Ulpian, Book XXVIII On edict) illustrates the jurists' logic. The praetor makes the shipowner responsible for the captain's contracts. Ulpian invokes bothutilitas andaequitas. Utilitas resides in the granting of a legal remedy ; but the deeper justification is equity : the passenger, forced to contract without real freedom or information, must be protected. Far from aiming at the economic promotion of navigation, the measure rebalances an asymmetry of information and protects the party with less freedom of choice.
In conclusion, Roman jurists did not pursue economic objectives in the modern sense. They sought neither efficiency nor wealth maximization. Their normative criteria were essentially legal - aequitas, utilitas - and when an economic consideration appeared, it was secondary and integrated into a reasoning of equity. Perhaps we should even reverse our perspective : in Rome, it was not economics that governed law, but law that framed and guided economics.
