Individual Will and the Civil Law Tradition

Overview & Synopsis

This volume sets out to explore the relationship between individual will ( voluntas ) and the legal rule. What unfolds in the following pages is a wide-ranging itinerary, moving between past and present, most notably ancient Rome and the contemporary world. The guiding question is as radical as it is enduring: in what way can voluntas (a psychological impulse internal to the individual) come to determine the legal rule? European private law tradition rests on the premise that legally binding acts – contract and will, to mention only two paradigmatic cases – derive their force from individual will. From the Roman sources arises, with exemplary force, the notion of lex privata : the idea that private will itself may generate binding legal norms. Such a premise immediately leads to further questions. Above all, it compels reflection on the authenticity of that will: what if voluntas is compromised? The law of defects ( error , dolus , metus ) opens the problem of whether distorted or corrupted will can truly sustain the validity and effects of a legal rule. The reflections gathered in this book approach the European civil law tradition as a broad and unified phenomenon, one in which law is inseparably bound to the historical and cultural contexts in which it takes shape.