Abstract
Did the Romans use economic criteria to make legal decisions ? To address this question without anachronistically applying the current framework of legal economic analysis, it is essential to start with the texts of the jurists, and in particular to grasp their argumentative method.
Roman jurists expressed their opinions in the form of responses to consultations. Individuals presented them with facts, asked a question and requested a legal response. This presentation and the related question can be referred to as " a case ". But not all the facts reported by individuals are retained by the jurist who answers : only those that must be taken into account from a legal point of view are retained. The question could then be formulated in general terms, and a general solution applied. Answers were rational, verifiable and reproducible : they could be applied by other jurists to other similar facts.
However, it was not enough to describe the facts and argue rationally to arrive at a solution ; decision criteria also had to be established. The first place was assigned to the law. Then, jurists had to take into account a number of institutions that were not established by law, but were nonetheless binding. This is the case, for example, with patria potestas. They were also constrained by the rigidity of verbal, gestural and symbolic forms. On the other hand, other binding normative criteria, rules in the form of prescriptive statements, could impose themselves on them as general principles of law. These criteria could be deduced from the law (such as the freedom of wills deduced from the XII Tables), be part of a heritage of rules formed by jurisconsults themselves over time (such as the non bis in idem rule), derive from the socio-political structure (such as the exclusion of women from public office) or be drawn from a form of legal anthropology inspired by Stoicism (such as the principle of self-defense). Lastly, jurists could be bound by non-explicit normative criteria, such as value-words : this is the case with benignitas, or even more so withaequitas, the most fertile of all principle-words, which provides a lexical synthesis of a series of explicit normative rules (and was the subject of the previous year's lecture).
