Roman law tradition in three cases of first impression

Resumo

In 1958 Raphael Powell – an English lawyer and the professor of Roman law at University College London – published an interesting article titled ‘Roman Law in Common Law Courts”. After the comprehensive presentation of different English law cases in which reference was made to the authority of Roman law, R. Powell defined three principles applicable to the utilisation of civilian solutions in English courts. He proclaimed that: (1) “the Roman rule can be applied only where the common law is silent”; (2) “the Roman law rule must be capable of fitting the conditions of the age in which it is sought to apply it”; and (3) “the mere fact that English law had adopted a Roman doctrine or institution does not mean that all the Roman law rules applicable to that doctrine or institution also apply in English law”. These principles show that the English Romanist had on his mind situations commonly called “legal gaps”. Before it is possible to relate the aforementioned ideas to the actual cases, it is necessary to discuss shortly the notion of the legal gap in English legal tradition.