Law and Morality in the Regulation of Contracts: Lessons from Ancient Rome

The way we nowadays think about “immoral” contracts is based on a number of assumptions. One of these assumptions concerns the relative isolation of law and extra-legal standards. This view, however, is not new or even modern: to a large extent, it can be traced back to Roman law that has been both praised and condemned for this relative separation.

In this paper we venture into the problematic of “immoral” transactions by combining historical, doctrinal and economic analysis. Focusing on cases and doctrines in ancient Roman law, our goal is to show how Roman lawyers found reasonable answers to issues which, in spite of obvious differences in economic and cultural context, can teach some lessons for our modern understanding of contract regulation.

After a brief overview of economic analyses of law and morality and some methodological problems of the economic analysis of legal history, we turn to the historical dynamics of the Roman doctrine of immoral contracts. We reconstruct how and why the term immorality (contra bones mores) became a general clause of Roman law in a relatively short time; discuss what kind of cases were solved with reference to this clause; and analyse how this clause shows the practical rationality of Roman lawyers. Finally, we raise some substantive and methodological points where this historical case can provide insights for the economic analysis of the interactions of law and morality.