I have two aims in producing this paper. First, I wish to contribute to the general understanding of how and why law develops and explain the evolution of some very familiar legal institutions. Second, I wish to add to our knowledge of the history of Roman law, by producing a radically different view of the development of contracts, that is, I believe, both consistent with surviving textual data and plausible with regard to human behavior.

‘It may not be proper to announce it,’ said President Franklin Roosevelt on June 25, 1941, ‘but today the Supreme Court is full.’ Roosevelt had just witnessed the swearing in of Justice Robert H. Jackson who would now take his seat on the Court along with the President's other appointees—Hugo Black, Stanley Reed, Felix Frankfurter, William Douglas, Frank Murphy, James Byrnes and Harlan Stone (promoted to Chief Justice).

The history of arbitration procedures and extra-judicial forms of dispute settlement in medieval England remains largely unwritten. This neglect is no doubt attributable to the precocious development of the common law, which has monopolized the attention of English legal historians and left them little time to consider alternative forms of dispute resolution. Their main preoccupation, epitomized in the work of great scholars such as Maitland, Holdsworth and Plucknett, has been to trace the evolution of legal institutions, procedures and doctrine. Consideration of arbitration has at best been regarded as peripheral to this central task.

Restrictions in law upon the power of testators to devise chattels were the norm in the days both of Glanvill and of Bracton. As Holdsworth put it:

If he [the testator] left a wife alone she took a half; if a wife and children they took, the wife a third, and the children who had not received an advancement from their father in his lifetime a third; … it was only the half or the third which remained over that a man was free to dispose of as he pleased.

During the second century, North Africa was one of the Roman empire's most important producers of food, supplying perhaps two-thirds of the grain consumed in Rome. In addition, North African olive oil was exported all over the Western Mediterranean. The Roman imperial government took a continuing interest in North Africa's importance as an agricultural center and so maintained control over a large proportion of North African farmland. One of the most important centers for imperial land was the fertile Bagradas valley in northern Tunisia. There, a regulation called the lex Manciana served as a basic lease arrangement for tenants cultivating land on imperial estates. Since the lex Manciana is attested only on North Africa, it seems to have been a regulation designed specifically for the conditions of that region and so represents part of the imperial government's long-term program of exploiting North African farmland.

Almost every state and territory adopted a married women's property act between 1835 and 1850. These acts generally exempted married women's property from attachment by creditors of their husbands, effecting a slight change in the battery of common-law coverture rules that gave husbands management of their wives' real property and ownership of their personal property. Alterations in the roles of women in the family, increases in education of women and growth in the importance of women's public service groups provided an environment sympathetic to initial reforms in married women's property law. In addition, economic panics and depressions affected the family economy, providing an incentive for adoption of rules exempting married women's property from the claims of their husbands' creditors.

In a well-known chapter in the book known as the Mirror of Justices, the anonymous author recounts King Alfred's drastic solution to the problem of misbehaving judges:

It is an abuse that justices and their officers who slay folk by false judgments are not destroyed like other homicides. And King Alfred in one year had forty-four judges hanged as homicides for their false judgments.

Unfortunately, as Maitland has conclusively demonstrated, we cannot rely on this passage as historical evidence of Alfred's reign. Nevertheless, the passage illustrates both a problem and a solution common in the Roman and medieval periods. The problem was judicial misconduct and corruption. The solution was to impose personal liability upon miscreant judges for their behavior.

As a range of late-twentieth century societies grapple with welfare costs that seem to rise inexorably, a ‘return’ to former priorities and emphases is often mooted. Shifting some of the burden of welfare back to the family from whence it came is attractive to policy makers, if not to recipients. The underlying assumption of ‘back to the family’ reformers seems to be that because family-based social welfare worked in the past, it may now provide a way out of the expensive responsibilities facing the Welfare State. The words used vary; but whether it is a ‘return to Victorian values’ or some other formulae that is being extolled, the reliance upon self-help and family responsibility is unmistakable.

During the middle ages the church maintained a legal system largely independent of English secular justice. Its primary functions were to enforce canon law as it directed the spiritual welfare of all Christians and to regulate the institutions and personnel of the church. Thus, church courts prosecuted sinners and adjudicated disputes between individuals in which some sacramental matter, such as an oath, marriage or testament, was at stake. In addition, canon law governed appointments, powers and duties of ecclesiastical office holders and the juridical relations among various offices.

Who but David Daube is able to look at matters seemingly trivial and insignificant and show how astonishingly revealing they are of some of the deepest longings of the human spirit? How interesting that with his impeccable academic record, his belonging over the years to the most august and élite institutions of learning, in a word, his connection with the Establishment, that his instinct for how things look to the lowly and the oppressed has come more and more to the fore. Consider the fables of antiquity. They seem to be no more than moderately imaginative stories that possess some entertainment value, demand little of the listener's time and attention, ostensibly tell about the world of animals and plants but really about the human world. The genre was despised by the educated snobs of antiquity. Intellectuals in our culture, somewhere defined as people who are educated beyond their intelligence—actually this reflects Aesop's view of them in his time—would also overlook the genre if someone of Daube's stature were not around to remove the scales from their eyes.

The stategic role played by population movement, and its interaction with agrarian environment, in current theories of medieval economic development stands in sharp contrast to the relatively sparse direct evidence that can be marshalled to elucidate demographic change in medieval England. Indeed, work done to date has relied largely upon indirect indicators such as rents, prices, and wages or landscape changes associated with processess of reclamation, colonization, settlement resiting, shrinkage and desertion.

Despite the recent rebirth of scholarly interest in the law of slavery, Kenneth Stampp's The Peculiar Institution contains the best twentieth century overview of the internal law of slavery in the antebellum South. Nevertheless, Stampp's interpretation leaves unresolved the ‘dilemma’ that he argues also puzzled slave masters, legislators, and magistrates: How the law could recognize slaves both as ‘property’ and as ‘persons.’ To Stampp, the ‘dual character of the slave’ was an irreconcilable contradiction:

…there was no way to resolve the contradiction implicit in the very term ‘human property.’ Both legislators and judges frequently appeared erratic in dealing with bondsmen as both things and persons.

Although Stampp states that, ‘the slave's status as property was incompatible with his status as a person,’ he concludes that ‘throughout the antebellum South…legally, the slave was less a person than a thing.’