On 2 November, 2017, Brasenose College, University of Oxford, organised a Memorial Conference on Barry Nicholas, as part of a series “Great Brasenose Lawyers”. Barry Nicholas spent his entire career at Brasenose. The event was more, as it advertised itself, a retrospective view and a discussion. Professor Wolfgang Ernst of Oxford addressed the issue of Barry Nicholas as a Romanist, Professor Birke Häcker spoke of hm as a comparative lawyer, Mr Jeffrey Hackney discussed him as a tutor in Roman Law, and Professor Emeritus Francis Reynolds explored his work on international sales. For details, see https://www.bnc.ox.ac.uk/about-brasenose/princblog/1853-principal-s-blog-early-november.
This blog is delighted to publish a revised version of Professor Ernst’s talk.
Cognitive Closure in Roman Law:
Reflections on Barry Nicholas’ An Introduction to Roman Law
by Wolfgang Ernst (Oxford)
These are remarks about Barry Nicholas as a Roman Law scholar. A talk about Barry Nicholas as a Romanist, in 2017, must focus on his ‘An Introduction to Roman Law’. For good order, however, one may note that in 1972 Nicholas took over Jolowicz’ ‘Historical Introduction to the Study of Roman Law’, which thus became Jolowicz and Nicholas, and that he published eight scholarly Roman law papers in a range of internationally recognized journals, between 1958 and 1983. They were state of the art contributions.
Published in 1962, An Introduction to Roman Law, was one of the very first books of the Clarendon Law Series. Tony Honoré and Joseph Raz were the general editors. Some of the other books published in that series were Hart’s The Concept of Law, Atiyah’s An Introduction to the Law of Contract, Peter Cane’s Administrative Law, and Rupert Cross’ Precedent in English Law.
Barry Nicholas’ book is a success story and a classic. Peter Birks, in his 2002 obituary for the British Academy, gave the number of 50,000 copies sold, not counting the foreign language editions. The book has been translated into Spanish and, in 2000, into Chinese. There is now also a translation into Macedonian. Peter Birks remembered that the Press had approached Barry Nicholas to work on a new edition of ‘the book, which many regard as his masterpiece’: ‘If truth be told, it needs no second edition. It is perfect as it stands It does its job as well today as it did forty years ago.’ When Ernest Metzger saw that the book got a fresh reprint in 2008, he left the text unchanged, and just added a glossary, a new bibliography and a foreword. This, indeed, is the way to treat a classic.
What is the secret of the book’s success? Let me start with a few words about the difficulty of textbook-writing, especially in the historical sciences. What we know about the past, or legal systems of the past, is the result of careful and methodological exploration of a limited set of sources. Each and every statement in a history textbook has a mostly hidden background of sources and their – sometimes controversial – interpretation. There are different degrees in our confidence that something written for the student will indeed have been the case. If we were to flag out in an introductory book all the shades of probability, our remaining doubts and the inability to rule out, once and for all, that a different narrative might be closer to the past – the end-product would be readable for the mature specialist only.
It is inevitable, therefore, that an introductory textbook is twice removed from the realities of the past: It sums up today’s state of research, ironing out some of the unevenness of our scholarly controversies, and the state of research thus reported in turn is but an imperfect, fragmented, and necessarily unsystematic set of insights, in our case regarding the law of the Romans, as it evolved over a millennium. Compared to the ragged state of historical research, an introductory textbook will almost inevitably give a too polished view of the field.
A textbook for a historical subject, the approximation of an approximation, should of course also hold up when critically scrutinized by the expert in the field. It is a balancing act. Balancing acts often end in a state of indecision, an unsteady wobbling between conflicting ideals. You get neither fish nor fowl. The greatness of Nicholas’ book, in my view, lies in the decision, vigorously carried out, to uncompromisingly prioritize the didactic purpose. Based on expert knowledge of Roman law, Nicholas introduces, without tripping-hazard, the student to the basics of Roman law, pure and simple, presenting the private law of the Romans, which so often was the product of contingent developments, as a web of intelligible narratives. A coherent picture of Roman law emerges, untroubled by the doubts and controversies which accompany the lively progress of our research.
An especially striking feature may highlight this point: The book is devoid of any specific reference to a fragment of the Institutes, the Digest or of whatever pertinent sources the reader could be referred to. I know of no other introductory textbook which has been so radical in this respect. It is not difficult to see why Nicholas pursued this policy. When you give a reference to a bit of the Digest, to back up what is stated in your text, and the young reader looks it up, she or he may well find that the bit of the Digest does not in fact say this in the very same words. Rather, he or she will find a specific case and a proposition as to how it should be decided; the case may involve a number of elements in a legal interplay, not that easily dissected and understood. Yes, the abstract statement which the Digest-text is assumed to back-up, seems to be there, but intermingled with other statements of law, and doubts may remain, whether the Digest-bit could not perhaps be read differently altogether, depriving it of its evidentiary value for the passage of the text it is meant to support. In order to protect the student from the risk of getting confused, better not have references at all?
Here the book’s ‘secret of success’ becomes apparent: the book offers cognitive closure. A highly dedicated teacher, like Nicholas, gifted with empathy for the beginners and their woes, must know how many students indeed crave cognitive closure. And this is what the ‘Introduction’ provides the reader with.
Cognitive closure is a sweet drug. Sooner or later, the good student will have to be confronted with the complexities and riddles of historical research, the fragmented nature of our knowledge, and the tools to critically handle sources. We expect and hope that our students will acquire a sufficiently confident command of their subject, asking and pursuing questions of their own, discerning reliable findings and still unproven hypotheses, thus deserving their swimming badge in the stormy seas of research.
The author of an introductory work is, of course, fully justified in saying that these problems are to be tackled once the student has progressed beyond the stage of a beginner, and that the care for the young students requires setting up, temporarily, a systematized and intelligible world, letting problems recede into the background. Some dry run before you go into the water. Assuming that we can get (all or most) students to sometime leave the safe port, this may come with a serious risk of ‘cold turkey’. And that risk may even be the greater, the better the introduction has been.
There is, of course, a radically different school of thought. Some teachers hold that the student, from her or his very first day, needs to be taken to the uncertain frontiers of research, with conflicting evidences and open questions: ‘Throw them into the water, may she or he swim or go under! Don’t give them a false sense of security!’
This is not the place to discuss the pros and cons of these two approaches. It is sufficient to say that if one followed the concept of getting students going in a more gradual manner, showing them some secure signposts and leaving the controversies and unknowns to a later stage, for the field of Roman law, one could not find a better work than Nicholas’ Introduction.
Nicholas as Romanist:
‘The Form of Stipulation in Roman Law’, LQR 69 (1953), 63-79 and 233-52.
with P. M. Fraser: ‘The Funerary Garden of Mousa’, JRS 48 (1958), 117-29.
‘Liability for Animals in Roman Law’, Acta Juridica , 185-90.
‘Dicta Promissave’ in Studies in the Roman Law of Sale in Memory of Francis de Zulueta, ed. D. Daube (Oxford, 1959), 91-101.
with P. M. Fraser: ‘The Funerary Garden of Mousa Reconsidered’, JRS 52 (1962), 156-9.
‘Videbimus’ in Synteleia Vincenzo Arangio-Ruiz (Naples, 1964), vol. 1, 150-4.
‘Videbimus II’ in Studi in onore di Edoardo Volterra (Milan, 1971), vol. 2, 577-604.
F. Jolowicz and B. Nicholas, Historical Introduction to the Study of Roman Law, 3rd edn., ed. B. Nicholas (Cambridge, 1972).
‘Theophilus and Contrectatio’, in Studies in Justinian’s Institutes in Memory of J. A. C. Thomas, ed. P. Stein and A. Lewis (London, 1983), 118-24.
 Peter Birks, ‘John Kieran Barry Moylan Nicholas, 1919-2002’, in: Proceedings of the British Academy, Volume 124: Biographical Memoirs of Fellows III (2004), 219-242, at 229.