Legacies of the Sacred in Private Law: Roman Civic Religion, Property, and Contract.

This article revisits Émile Durkheim's classic argument for the social foundations of property and contract law. Drawing on recent scholarship in Roman religion and law, I argue that there is a core of truth in Durkheim's theoretical account. Categories and conceptions of the sacred do inform property and contract law, as Durkheim argued. However, rather than being rooted in a universal process of development from totemic religion to secularized ethics, the process of development is historically bound up with the particularities (and peculiarities) of Republican and Imperial Rome, some of which were passed on to the Christian Church, and carried forward to the modern nation-state. What is there more sacred, what is there more religiously walled in, than the house of one single citizen? Here are his altars, his hearths, his ancestral gods, his sacred rites, the preservers of his religious ceremonies; this is a sanctuary for everyone, so sacred a place that it is a violation of sacred law to tear anyone away from it. [ABSTRACT FROM AUTHOR]