Autonomía privada y ley publica en Roma

This article deals with an optical illusion of modern Roman law scholars. These scholars stem from a society and legal system that has its basis in what Sumner Maine famously called “contract”, whereas Rome was a society and legal system based on the opposite, on “status”. This being so we happily state that there are very few restrictions to party autonomy in those public laws of Rome which we normally consider and, therefore, conclude that Rome was the “El Dorado” of party autonomy and can serve as a model for liberalism. We are able to fall prey to this optical illusion for the reason that we do not consider the manifold and thorough, even tyrannical restrictions of party autonomy in the field of “status” (persons, marriage, dowry, testaments) which we do not consider for the reason that we are less interested in these parts of Roman law for the reason that they belong to a different type of society for which we have very little comprehension.