Consent in Roman Choice of Law

No problem of Roman historiography currently draws more attention among ancient historians than the role of Roman law in the administration of the Roman Empire. In studying this role, historians have explored the techniques that the Roman jurists used to expand the application of Roman law to address the new problems that arose in provincial administration. This essay, by contrast, suggests that the jurists took equal pains to restrict the use of Roman law, preserving space for the application of non-Roman legal traditions. It does so by describing the Roman jurists’ approach to choice of law. In resolving choice-of-law problems, the jurists consistently applied what this essay calls a principle of consent: the applicable law in a given proceeding is the law to which the parties have consented by participating in its creation. The jurists’ writings on choice of law manifested a sustained effort to limit the reach of Roman law within the empire.