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1
Potokin, Yuri Nikolaevich. "The influence of roman law on the formation and development of the romano-germanic legal family." LAPLAGE EM REVISTA 7, no. 3B (September 29, 2021): 669–76. http://dx.doi.org/10.24115/s2446-6220202173b1611p.669-676.
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The purpose of the present work is to analyze the little-studied aspects of the influence of Roman law on the formation and establishment of modern legal systems related to the Romano-Germanic legal family. The author conducts a historical and dialectical analysis of the formation of the sources of Roman law, makes assumptions about their origin, and highlights the specifics of some of them. Legal reception has been considered separately as the main factor of influence of Roman law on the creation and formation of the law of the states of the Romano-Germanic legal family. It has been concluded that it is necessary to harmonize the sources of national law with the requirements of Roman law, the hypothesis has been proved that it was the qualitative characteristics of Roman law that served as the main reason for its reception by the states of the Romano-Germanic legal family.
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Naumenko, K. S. "The characteristics of Roman Private Law Sources." Bulletin of Kharkiv National University of Internal Affairs 102, no. 3 (Part 2) (October 4, 2023): 33–39. http://dx.doi.org/10.32631/v.2023.3.25.
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The article establishes that the sources of Roman Private Law are the ways of consolidation and external expression of legal norms which, in their entirety, were aimed at regulating private legal relations.
It is argued that the key sources of Roman Private Law should be divided into the following groups: laws (leges) – these were normative acts issued by the legislative bodies of the Roman Republic or Empire (the most important laws were the XII Tables (Lex Duodecim Tabularum), which became the first codified law in Roman history); customs (mores) – these were the norms of behaviour which were generally recognised by the Roman public (customs arose from complex relationships between people and resolved certain issues which laws did not regulate); judicial decisions (iudicia) were court decisions that served as an example for subsequent decisions in similar cases (they were considered one of the most important sources of Roman Private Law, as they ensured legal stability and progressive development of law); legal writings (responsa, iura, commentarii) were works of famous Roman lawyers containing legal opinions and views on various issues of law (they became an important source of law as they provided interpretation of laws and established legal practice); agreements (pacta) were agreements between parties on certain issues (they played an important role in Roman Private Law as they provided legal protection to the parties and regulated their relations).
The author emphasises the need for further understanding of the sources of Roman law, formulation of the latest recommendations based on the positions of ancient researchers and finding in these positions the latest solutions to the problems existing in society in the context of modern legal thought. This should be achieved through research in various branches of law, as well as relevant scientific events, conferences, competitions involving students, etc.
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Szczygielski, Krzysztof. "ROMANISTYKA POLSKA W LATACH 1918-1945 (PRZEGLĄD BIBLIOGRAFII)." Zeszyty Prawnicze 10, no. 2 (December 23, 2016): 355. http://dx.doi.org/10.21697/zp.2010.10.2.22.
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ROMAN LAW STUDIES IN POLAND IN THE YEARS 1918-1945 (REVIEW OF BIBLIOGRAPHY) Summary In Roman law studies in Poland there is no complete list of the works published in the years 1918-1945 by scholars dealing with Roman law. The scientific output of the Polish researchers was presented by Rafał Taubenschlag in the article, Gli studi di diritto romano in Polonia nel secolo XX, [in:] Gli Studi Romani nel Mondo, volume III, Roma 1936, p. 247-268, but he focused mainly on discussing the major works. An attempt to show the achievements of Roman law studies in Poland on a comprehensive basis was undertaken by Juliusz Wisłocki, Dzieje nauki prawa rzymskiego w Polsce, Warsaw 1945, but his study is highly incomplete. The analysed period witnessed the emergence of lots of valuable works concerning the history and the institutions of Roman law in the form of monographs, articles published in many domestic and foreign periodicals, studies on particular occasions, encyclopedic dictionaries and reports on the activities of scientific societies. The problems related to the law of the ancient Rome were dealt with not only by the Roman law researchers but also by legal historians and classical philologists. The works were presented according to the following sections: I. General works, textbooks and scripts; II. Ancillary publications; III. History of sources; IV. Civil procedure; V. Law of Persons and legal proceedings; VI. Family law; VII. Law of Property; VIII. Law of Obligations; IX. Law of Succession; X. Criminal law and procedure; XI. Public law; XII. Philosophy of law, methodology and political and legal doctrines; XIII. Importance of the Roman law; XIV. Evaluation of the output of Roman law scholars.
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Lukošius, Tadas. "The Place of Roman Law Sources in the Development of Pre-Classical Canon Law (ius antiquum)." Teisė 123 (July 5, 2022): 98–114. http://dx.doi.org/10.15388/teise.2022.123.7.
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The paper examines the place of Roman law sources in the development of pre-classical or old canon law (ius antiquum). By looking at the evolution of ius antiquum from the perspective of changing Church-state relations, the author seeks to identify as to whether – and if yes, to what extent – sources of ius antiquum relied on the sources of Roman law.
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Dadashov, M. M. "Sources of Roman-Byzantine law, received in Old Russian law." Obrazovanie. Nauka. Nauchnye kadry, no. 4 (2022): 36–38. http://dx.doi.org/10.56539/20733305_2022_4_36.
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Mańko, Rafał. "PRAWO RZYMSKIE JAKO ŹRÓDŁO PRAWA W AFRYCE POŁUDNIOWEJ." Zeszyty Prawnicze 3, no. 1 (March 29, 2017): 139. http://dx.doi.org/10.21697/zp.2003.3.1.05.
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ROMAN LAW AS A SOURCE OF LAW IN SOUTHERN AFRICASummary Roman law is usually regarded as an object o f historic study and not as a practical discipline of the legal science. However, the situation is different in six South African states - the Republic of South Africa, Zimbabwe, Lesotho, Swaziland, Botswana and Namibia - which have preserved the uncodified ius commune europaeum brought by the Dutch to the Cape of Good Hope in the 17th century.The hierarchy of the fontes iuris oriundi in the South African legal system seems to be the following: the Constitution, statutes, customary law, case-law, Roman-Dutch law and Roman law. The position occupied by Roman law is in fact only subsidiary, however it is a source of law and is referred to from time to time in the case-law. On the other hand it permeates the whole legal system which is based on fundamental notions derived from Roman law, which have been preserved and developed in the treatises of the Roman-Dutch jurists and the case-law of the courts.The frequency o f citations of Roman law in the South African case-law has been an object of two major studies. One, conducted by Van Der Merve concerned the period 1970-1979, the other, by Du Plessis - took into account the cases of 1990-1991. The studies revealed that Roman sources are cited in 4,7-4,8% of the case-law. According to another study by Zimmermann, only in half o f those cases the Roman sources were relevant for deciding the case.Nevertheless, it is submitted that these figures should be treated as significant, especially when compared with the position occupied by Roman sources in the modern case law in other civilian jurisdictions.
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Kosior, Wojciech J. "The importance of age in the Roman criminal process." Acta Iuridica Resoviensia 43, no. 125 (December 30, 2023): 37–49. http://dx.doi.org/10.15584/actaires.2023.4.3.
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In Roman law there were institutions whose application and, above all, their effects depended on the attainment of a numerically specified age by the subject of the law. Age limits presented in Roman law literature are usually associated with civil law – personal law, and more specifically to the scope of legal capacity, although, of course, a number of other powers exercised under other branches of law were also connected with this capacity. The purpose of this article is to present the results of the research conducted on the juridical sources of Roman law, which revealed texts relating to the problem of age on the grounds of the Roman criminal process. Research conducted on Roman law sources showed that three categories of age were important in the criminal process: 14 years, 20 years and 25 years.
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Bachrach, David S. "Dominik Trump, Römisches Recht im Karolingerreich: Studien zur Überlieferungs- und Rezeptionsgeschichte der Epitome Aegidii. Quellen und Forschungen zum Recht im Mittelalter 13. Ostfildern: Jan Thorbecke Verlag, 2021, pp. 340." Mediaevistik 34, no. 1 (January 1, 2021): 407–8. http://dx.doi.org/10.3726/med.2021.01.85.
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The study of legal practice, legal theory, and the issuing of law in early medieval Europe has seen a fundamental paradigm shift over the past three decades as scholars have rejected an older model of the Germanic invasions and/or migrations toppling Roman civilization in the lands of the erstwhile western Empire. It is now well understood that the so-called “barbarian law codes” were, in fact, composite bodies of law drawn from a variety of Roman sources, including not only the compendia produced under the auspices of Emperors Theodosius II (402‐450) and Justinian (527‐565), but also Roman provincial law and Roman military law. This new understanding of the enormous influence of Roman law, in its many forms, on early medieval legal thinking and practice was driven by a detailed re-evaluation of legal texts, which continues unabated to the present day. The volume under consideration here, the revised doctoral dissertation of Dominik Trump completed at the University of Cologne, offers a close examination of an epitome of the Lex Romana Visigothorum, issued by King Alaric II between 505‐507. This epitome, called the Epitome Aegidii after its first editor Pieter Gillis (1486‐1533), played a significant role in both legal studies and practice in the Regnum Francorum because of its great utility. As Trump observes, despite its brevity the Epitome Aegidii has the same range of sources as the Lex Romana. These are the Codex Theodosianus, novellae from after the reign of Theodosius, Pseduo-Pauline sentences, the Codex Gregorianus, the Codex Hermogenionus, and a short responsum from Aemilius Papinianus. The Epitome, therefore, provides yet another index of the value with which legal thinkers and practitioners in early medieval Europe regarded the choices made by the advisors of King Alaric when designing and executing his legal compendium.
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Sitek, Bronisław. "Dynamics of sources of law formation - from Roman law to cyberspace." Journal of Modern Science 39, no. 4 (February 4, 2019): 185–99. http://dx.doi.org/10.13166/jms/103109.
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Metzger, Ernest. "Roman Judges, Case Law, and Principles of Procedure." Law and History Review 22, no. 2 (2004): 243–75. http://dx.doi.org/10.2307/4141647.
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Most who study Roman law today do so as historians, not lawyers. History includes doctrine, but Roman legal doctrine is rarely used to solve modern problems. There are exceptions: Roman law helps to solve modern problems in certain jurisdictions and academic writing sometimes gives a Roman solution to a modern problem. But the time is past when Roman sources were routinely put to work in the world of affairs, and most would say codification is the main reason.
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Amielańczyk, Krzysztof. "RZYMIANIE I ICH „PRAWO MEDYCZNE” (ASPEKTY PRAWNO-KARNE)." Zeszyty Prawnicze 11, no. 1 (December 21, 2016): 69. http://dx.doi.org/10.21697/zp.2011.11.1.04.
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ROMANS AND THEIR ‘MEDICAL LAW’ (CRIMINAL LAW ASPECTS) Summary Medicine began to be regulated by law already in the antiquity. Securing the public interest, the Roman legislator made attempts to protect his citizens from certain blameworthy medical practices. There are sources available showing cases of doctors (medics), midwives and pharmacists being criminally prosecuted as a result of the fatal consequences of their medical and quasi-medical activities. The Roman law would impose criminal liability for the acts of administering poison instead of a medicament, bans on sterilization (castration), bans on abortion, criminal liability for causing the death or bodily injury of another man’s slave as a result of his improper treatment (imperitia). Doctors could be divided into private doctors, hired by private persons, and public ones, who were employed and paid by municipalities. Public doctors had to be highly qualified and enjoy an immaculate reputation. Nonetheless, the requirements demanded of doctors did not change the generally negative opinion on medics as held by the Roman society.
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Sobczyk, Marek. "WPŁYW PRAWA RZYMSKIEGO NA KSZTAŁTOWANIE SIĘ WSPÓŁCZESNYCH TEORII SIŁY WYŻSZEJ." Zeszyty Prawnicze 6, no. 1 (June 22, 2017): 173. http://dx.doi.org/10.21697/zp.2006.6.1.11.
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The Influence of Roman Law on the Creation of the Contemporary Theories of Force MajeureSummaryThis paper is devoted to the influence of Roman law on the creation of the contemporary theories of force majeure. Its aim is to verify a commonly shared view that Roman law deeply influenced the development of the private law. The Author analyses the works of the nineteenth century legal scholars on the issue of force majeure (L. Goldschmidt, A. Exner, G. Gerth, J. Luchsinger) to examine to what extent their theories and views were based on Roman law.The nineteenth century legislation referred to the doctrine of Roman jurists due to the fact that the notion of force majeure was applied in the same legal relationships as in Roman law (first and foremost the liability of carrier, innkeeper, stablekeeper). Apart from the national terms used to denote force majeure, e. g. German term höhere Gewalt, the legislators applied the original Roman term vis maior which was well-known in legal writing of European countries.The author comes to a conclusion that the above mentioned legal scholars took advantage of the thought of Roman jurists In fact, the scholars searched for the fundamental idea of their doctrines in the sources of Roman law, however, the sources themselves were interpreted in a creative way, to considerable extent abstracted from their content. The Roman law was analyzed taking into account the needs of the nineteenth century legal relations.To sum up: the theories of force majeure consisted of both the thought of Roman jurists and creative concepts of the nineteenth century scholars.
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Ribary, Marton, and Barbara McGillivray. "A Corpus Approach to Roman Law Based on Justinian’s Digest." Informatics 7, no. 4 (October 15, 2020): 44. http://dx.doi.org/10.3390/informatics7040044.
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Traditional philological methods in Roman legal scholarship such as close reading and strict juristic reasoning have analysed law in extraordinary detail. Such methods, however, have paid less attention to the empirical characteristics of legal texts and occasionally projected an abstract framework onto the sources. The paper presents a series of computer-assisted methods to open new frontiers of inquiry. Using a Python coding environment, we have built a relational database of the Latin text of the Digest, a historical sourcebook of Roman law compiled under the order of Emperor Justinian in 533 CE. Subsequently, we investigated the structure of Roman law by automatically clustering the sections of the Digest according to their linguistic profile. Finally, we explored the characteristics of Roman legal language according to the principles and methods of computational distributional semantics. Our research has discovered an empirical structure of Roman law which arises from the sources themselves and complements the dominant scholarly assumption that Roman law rests on abstract structures. By building and comparing Latin word embeddings models, we were also able to detect a semantic split in words with general and legal sense. These investigations point to a practical focus in Roman law which is consistent with the view that ancient law schools were more interested in training lawyers for practice rather than in philosophical neatness.
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Garofalo, Luigi. "POJĘCIA I ŻYWOTNOŚĆ RZYMSKIEGO PRAWA KARNEGO." Zeszyty Prawnicze 3, no. 1 (March 29, 2017): 7. http://dx.doi.org/10.21697/zp.2003.3.1.01.
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THE NOTIONS AND VITALITY OF THE ROMAN CRIMINAL LAWSummary In the recent studies one tends to revaluate the influence of the Roman criminal law on the later penal doctrine, as well as the achievements of the Roman criminal law itself, rejecting the previous theories presenting it as significantly inferior. It is noticed in this study that the medieval jurists idolized the Roman law, adopted it to the new circumstances, and obviously made mistakes interpreting it. And thus the influence of the Roman jurisprudence on the penal doctrine of the ius commune Europe was thoroughly substantial. Notwithstanding the popular opinion also many of the Enlightenment jurists (as, for instance, Gaetano Filangieri and Francesco Mario Pagano) not only knew but also benefited from the Roman criminal law legacy. The doctrine of crime of the successive period was less inspired by the Roman criminal law, which however did not totally lose its significance. It still had some indirect influence, as the nineteenth century codifiers did not stop using the notions of criminal law shaped-up by the mediaeval jurists overwhelmingly impressed by the Roman law.The main part of the study presents a brief overview of the Roman criminal law, especially of the principal rules constituting today the general part of criminal law, principles which could be directly or indirectly found in the experience of the Roman prudentes. It is pointed out that the only Roman lawyer who tried classifying Roman criminal law was Claudius Saturninus (D. 48,19,16). His classification is later discussed in the article as well as some of the crimina (public law crimes), observing that the Romans never separated the Roman criminal law from ius. On this occasion it is underlined that one of the rules often ascribed to the Romans, nullum crimen, nulla poena sine praevia lege poenali, not only was not their own invention but it was clearly contrary to the criminal law practice in their times (the principle itself being probably formulated only by a German lawyer, Feuerbach). The Romans tried describing the subjective and objective element of the crime as well as presenting various defences available to the culprits (e.g., age, necessity, self-defence, mistake, etc).In the last part o f the paper the possible influence of the Roman criminal law constructions on the Middle Ages is pondered over. The often wrong interpretations of the ancient sources led to some embarrassment and paradoxes. This explains Baldus’ famous statement allowing the judge to construe the (Roman) statute according to the principles of the ius commune, which would in turn revive the statute and save it from an inevitable decay. The mediaeval lawyers studied and analysed the figures of deliberate misconduct and unintentional negligence (anyway without further effects in clarifying vague issue o f the subjective element of the crime). Some of the defences, like the most important figure of self-defence, known and elaborated in the Roman law came to the teachings and studies of the doctores in their original shape and significance, sometimes even stimulating further development of the penal doctrine. The mediaeval ius commune jurists adopted Roman considerations applying different responsibility regarding the doer’s age as well as Roman systématisations of the crimes subordinated to various legal principles. And therefore the doctores, following the Roman example, drew a line between public and private crimes, these which were officially prosecuted and those which were brought to court on a basis of a private motion. The jurists distinguished between lay-public and ecclesiastical crimes, between ordinary and peculiar offences, dishonourable and regular wrong-doings. Similarly the mediaeval lawyers took over the Roman considerations about attempt and iter criminis as well as concurrence of crimes and offenders.In conclusion the paper, wishing for a future development of the studies on the subject, summarises that the theoretical solutions and considerations in the Roman criminal law wrought out above by the classical jurisprudence outlived their times and became the source of the doctrinal inspirations in the coming centuries.
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Du Plessis, Paul. "Thinking Like a Lawyer: The Case for Roman Law." Acta Universitatis Lodziensis. Folia Iuridica 99 (June 30, 2022): 165–72. http://dx.doi.org/10.18778/0208-6069.99.12.
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The aim of this piece is to present an overview of certain recent trends which have emerged in the study and teaching of Roman law. These trends are identified and placed within the larger context of the role and function of the teaching of Roman law in Law Schools during the twentieth century. In addition, it is argued in this piece that trends regarding the study of Roman legal sources which have emerged in the context of U.S. Law Schools have the potential to enrich the discipline and to permit new questions to be asked about Roman law.
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Johnston, David. "Law and commercial life of Rome." Proceedings of the Cambridge Philological Society 43 (1998): 53–65. http://dx.doi.org/10.1017/s0068673500002145.
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Nearly thirty years ago, John Crook's well-known book Law and life of Rome provided what remains the most sustained and wide-ranging survey of the place of Roman law in Roman society. Chapter 7, ‘Commerce’, begins with the observation that in Roman times trade and business were relatively insignificant compared with land. No doubt few would disagree. But in recent years historians have done much to illuminate such questions of economic history as patterns of trade and consumption. Certain other matters, however, remain comparatively obscure. The non-legal sources are sufficiently unhelpful that it becomes important to have regard to the messages contained in the legal sources; and in them there is sufficient material to allow us to consider how the law shaped or was shaped by commercial life. The particular questions on which this paper touches are the type of labour – free or slave, dependent or independent – which was employed in commerce; and the manner in which commercial businesses were organized during the principate.
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Mantovani, Dario. "Legum Multitudo: Diskussionen und Perspektiven aus Anlass einer Übersetzung1)." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung 139, no. 1 (July 1, 2022): 338–51. http://dx.doi.org/10.1515/zrgr-2022-0009.
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Abstract Legum Multitudo. Discussions and Perspectives on the Occasion of a Translation. On the occasion of the Spanish translation of his study on the leges publicae in Roman private law, the author clarifies some of his own statements which were subsequently misunderstood and criticized, before commenting on parallel developments in this field of research over the last decade, especially on the revaluation of the leges regiae. The new results confirm the importance which the Romans attached to the lex; the role played by other forms of written sources of law also emerges, that taken together with the activity of jurists leads to a more complex and realistic picture of the Roman legal system – without diminishing the importance of jurisprudence.
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Nótári, Tamás. "Some Remarks on the Issue of Suicide in Roman Criminal Law." Acta Universitatis Sapientiae Legal Studies 8, no. 1 (June 20, 2019): 75–87. http://dx.doi.org/10.47745/ausleg.2019.8.1.05.
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This paper analyses the issue of suicide in the sources of Roman law, primarily criminal law. In the course of that, it will focus on the following key points: after a few introductory remarks outlining the Roman custom of committing suicide, first, it will discuss the judgement of suicide in criminal law in general; then, it will examine the appearance of the culprit’s suicide as grounds for exclusion of culpability (and the limits thereof) in sources in imperial law; finally, it will briefly analyse the legal position of suicide in military criminal law.
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Halkevich, S. V. "Formation of principles of justice and good faith in Roman private law." Analytical and Comparative Jurisprudence, no. 6 (February 18, 2023): 337–42. http://dx.doi.org/10.24144/2788-6018.2022.06.61.
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In addition to the traditional methods of analogy of law and analogy of lex, the application of the recommended clarifications of higher specialized courts, the role of the principles of justice, good faith and reasonableness, which by their properties can serve as a fundamental, universal and optimal basis for modeling a decision based on specific civil case.
Roman law is the formation source of the Romano-Germanic type`s legal system, including the basis for the creation of tort liability. Tort obligations to compensate victims of property losses caused by a committed offense (delict), the very first type of obligations since their origin, were introduced by Roman lawyers.
The purpose of the study was to carry out a retrospective analysis of the genesis and development of the principles of justice and good faith in Roman private law.
The article provides a retrospective analysis of the essence of tort liability in Roman law, taking into account the periodization of its development: the archaic period, the republican period, the imperial period. It was established that the formation and application of evaluative principles: justice and good faith in law enforcement activities, — have firstly appeared in Roman law. It was noted that the principle of justice (aequitas) was most often applied when it was necessary to resolve the contradiction between the established application of the law and a specific non-standard case, through a reasonable reconciliation of justified opposing interests in the spirit of this legal institution and an innate sense of justice (aequitas naturalis).
There is no integral consolidation of the concept of good faith in sources of Roman law. The existence of such an evaluation principle is confirmed only in law enforcement practice, most often when solving casual cases. It was established that the principle of reasonableness in the meaningful manifestation in which it exists today was not finally formed in Roman law. This principle was formed in the subsequent reception of Roman private law.
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Sarkic, Srdjan. "Servitudes in Byzantine and Serbian medieval law." Zbornik radova Vizantoloskog instituta, no. 50-2 (2013): 1003–12. http://dx.doi.org/10.2298/zrvi1350003s.
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In the first part of the work we find the Roman concept of servitudes, and then the rules on servitudes taken from Roman law to Byzantine and Serbian mediaeval law. Serbian legal sources knew the following rustic servitudes: rights of way, rights of pasture, rights to water and watering one?s cattle. Among the personal servitudes we find ususfructus and usus.
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Niczyporuk, Piotr. "BANKIERZY PUBLICZNI W ŹRÓDŁACH PRAWA RZYMSKIEGO." Zeszyty Prawnicze 14, no. 1 (December 8, 2016): 113. http://dx.doi.org/10.21697/zp.2014.14.1.04.
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PUBLIC BANKERS IN ROMAN LAW SOURCESSummaryThe Romans had an extensive terminology for persons who engaged in banking activities; however, only nummularii and mensarii pursued activities on behalf of the State. Their operations may be regarded as public banking in the broad sense of the term, and were conducted from the 4th century BC until the 3rd century AD. Banking was of key importance in the peak period of growth for Roman trading and financial operations, and this is confirmed in the sources for Roman law. We do not have any records for the bankers referred to as nummularii until the period of classical Roman law, when we get fragmentary references to them in the writings of Roman jurists. There are only two passages on their public activities in the quality control and exchange of coinage; the first is by Sextus Caecilius Africanus, and the second is Ulpian’s commentary on the duties of the prefectus Urbi. Other references to them in the works of Roman jurists relate to their operations concerning deposits and credit, and as such do not belong to the sphere of public law. We get more mentions of public bankers in the Roman non-legal literature. Mensarii, who performed a certain type of public banking duties, are referred to in Livy’s Ab urbe condita. Cicero, Suetonius, and Festus also wrote about them. Moreover, Grammaticus treated the term mensarii as synonymous with nummularii. Presumably the two categories of public bankers were considered to be generally respected individuals. We also have mentions of the nummularii in the non-legal literature. In his Satyricon Petronius esteemed their skills of assessing the quality of coins; they were also held in high regard by Martial, Suetonius, and Apuleius. Suetonius wrote of the severe penalties imposed on the nummularii by the Emperor Galba. On the other hand, all we get in the epigraphic sources, mostly tombstone inscriptions from Rome, elsewhere in Italy, and the western provinces, are records of the activities of the nummularii for the quality control and exchange of coinage, considered an important duty from the point of view of the State. In fact the non-legal and epigraphic literature of Rome tells us more about public bankers than do the sources on Roman law. Their work did not give rise to many legal problems, as we may conclude from the fact they are mentioned only in two juridical passages. The assessment of the quality of coins and their exchange, and other banking activities on behalf of the State were sufficiently supervised by Roman administrative officers, so there was no need for jurists to comment on them at length.
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Bannon, Cynthia. "Fresh Water in Roman Law: Rights and Policy." Journal of Roman Studies 107 (August 18, 2017): 60–89. http://dx.doi.org/10.1017/s007543581700079x.
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ABSTRACTFresh water came from a variety of sources, streams and springs as well as aqueducts. Much of the Roman law on fresh water concerns its supply, regulating rights to use it with a variety of legal institutions from public and private law (e.g. ownership, servitudes, interdicts). The study of fresh water has usually followed the legal categories, segregating the public water supply from water that was private property, and consequently segregating different types of evidence. In this paper varied evidence is analysed using the ‘bundle’ approach, an analytical framework from legal scholarship on rights in the environment, in which water rights are not monolithic but are represented by component rights, including rights of access, withdrawal, management, exclusion and alienation. Analysing component rights in fresh water reveals significant continuities in the Romans' regulation of it and the impact of this regulation. Although there was no centralized water administration in the early Empire, Romans took a systematic approach to regulating fresh water based on consistent working principles and policy priorities.
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Mertens, Bernd. "IV. Die Erbfolgegesetzgebung der Reichstage – zum Rechtsquellenverständnis in der frühen Neuzeit." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 133, no. 1 (October 1, 2016): 147–90. http://dx.doi.org/10.7767/zrgga-2016-0106.
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Abstract The succession legislation of the Holy Roman Empire - On the understanding of the sources of law in early modern times. Though the succession legislation of the Holy Roman Empire 1498−1529 affected only a small part of private law, it is excellently suited to examine the understanding of the sources of law in early modern times, the interaction between the imperial and territorial legislators, imperial and territorial courts as well as the relationship of imperial law and common law to particular law and customary law. A closer look is also given to the context of this succession legislation, the institutions involved and the final consequences.
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Pestov, M. M. "THE DEBATE ON THE METHOD OF ROMAN JURISPRUDENCE AND ITS FOUNDER: A SHORT HISTORICAL ESSAY." Вестник Пермского университета. Юридические науки, no. 4(58) (2022): 564–78. http://dx.doi.org/10.17072/1995-4190-2022-58-564-578.
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Introduction: the article analyzes a discussion on legal method of Roman law, including the question about the period of time when the method was developed. Purpose: to assess the views presented in the literature on external cultural factors that could influence the development of legal method. The main divergences between the approaches to understanding the Roman legal method are identified and attempts to reconcile them are analyzed. Based on the analysis of ancient juridical and non-juridical sources, the author attempts to determine the historical period when the Roman legal method may have appeared. Results: the analysis of different views showed that rhetoric, logic and intuitive cognition are regarded as the main factors that shaped the legal method of Roman law. However, the study of ancient sources does not give the understanding of a certain time period when it appeared. Conclusions: the different views presented in the literature not so much contradict as supplement each other. Thus, it is be more fruitful to analyze Roman law sources taking into account different approaches. It is not possible to determine a certain historical period when the legal method appeared. Due to the lack of sufficient information in the sources, it is also hardly possible to attribute the emergence of the method to a certain Roman jurist whose treatises would demonstrate a methodology of legal studies developed at that time. It appears to be more reasonable to reconstruct the external circumstances, the cultural environment for each individual period in the history of Roman jurisprudence.
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Waelkens, Laurent. "Classical Roman Law, a product of interpretation from the Early Modern Times." Tijdschrift voor Rechtsgeschiedenis 87, no. 4 (December 19, 2019): 575–97. http://dx.doi.org/10.1163/15718190-00870a08.
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SummaryThe study of the Roman law we know today, started in the twelfth century and was based on sources preserved from Roman Antiquity. The interpretation of these antique texts was, however, always contemporary and never reflected their original meaning. In this article we assess the importance of medieval and early modern interpretation and, by analyzing a series of thirteen classical notions of Roman law, illustrate how what we call “classical Roman law” nowadays found its origins especially in Early Modern Times. The article also brings an English summary of a series of articles we wrote in French and Dutch.
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Kotlyar, Ilya A. "Bankruptcy and the Praetorian Pledge: The Law of the Books and the Law in Action in the Early Modern Netherlands." Studia Iuridica 80 (September 17, 2019): 181–96. http://dx.doi.org/10.5604/01.3001.0013.4799.
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The article points out at the discrepancy between the different Mss. of the Roman Justinianic text: Littera Pisana and Littera Bononiensis. The discrepancy entailed that the doctrine of medieval Ius Commune offered stronger protection of the collective rights of the creditors, in comparison with the Classical Roman law. The Roman Dutch “Elegant School”, despite its general reliance on the original Roman sources, already in the writings of Grotius demonstrated allegiance to the medieval doctrine on the issue of bankruptcy. The authors of the “Elegant School” continued to prefer the medieval interpretation of the creditors’ rights and bankruptcy, although Dutch practice was, in many respects, drastically different from the Ius Commune doctrine. This ensured a strong protection of creditors in bankruptcy in Dutch law.
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Hamza, Gábor. "Bemerkungen zum Verhältnis zwischen dem Allgemeinen Teil des Privatrechts (Zivilrechts) und der Tradition des römischen Rechts." Studia Universitatis Babeş-Bolyai Iurisprudentia 65, no. 4 (March 16, 2021): 395–408. http://dx.doi.org/10.24193/subbiur.65(2020).4.10.
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The author of this study traces back the origin of the notion of "General Part"(Allgemeiner Teil in German) to the century's old tradition of Roman law (Civil law). He points out that the origin of the term "General Part" cannot be found in the sources of classical and postclassical Roman law. The most renowned representatives of the German Pandectist School i.e., Pandectist Legal Science developed the concept of "General Part"during the preparation of the codification of private (civil) law during the 19th century availing themselves, however, of the Roman law tradition dating back to the previous i.e. medieval legal science.
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Sukačić, Marko. "SOME REMARKS ON SLAVE-SELLERS’ LIABILITY UNDER ROMAN LAW." Pravni vjesnik 38, no. 1 (April 2022): 49–66. http://dx.doi.org/10.25234/pv/18275.
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This article discusses the matter of the liability of professional slave-sellers for non-disclosure of a material defect to the buyer under Roman law. After first examining the professional sellers’ representation and image as reported in the relevant sources, the article reviews the material defects of slaves for sale through the lens of jurists’ and other relevant authors’ discussion on morbus et vitium, and how the two relate to the sellers’ claims in regard to the slaves they are selling. Next, the article provides an overview of the buyer’s legal protection in the event of a found defect or false advertising, specifically in the form of actio redhibitoria. By analyzing legal and other relevant ancient Roman sources, this article probes the fine line between allowable sales talks and legally binding sales promises on a number of peculiar slave sale contracts under Roman law. Lastly, the article argues which party to the sale contract had the less favorable position in terms of carrying the risk of the unintentionally undisclosed material defects in the classical Roman law and explores the point at which the limits to advertising end and the seller’s liablity begins.
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Bobbink, R., and Q. Mauer. "Antichresis: a comparative study of classical Roman law and the contractual praxis from Roman Egypt." Tijdschrift voor Rechtsgeschiedenis 87, no. 4 (December 19, 2019): 356–83. http://dx.doi.org/10.1163/15718190-00870a03.
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SummaryThe authors examine how papyrological sources from Roman Egypt written in Greek on antichresis relate to classical Roman law. Antichresis attested in papyrological antichretic contracts had a lot in common with antichresis emerging from Roman dispute resolutions. There was only one substantive difference: in classical Roman law, protection of the debtor was emphasized, whereas in the Greek papyrological antichretic contracts the position of the creditor was favoured. Given the similarities found, the authors conclude that antichretic loan both as an independent legal institution and as a pactum antichreticum was a pan-Mediterranean legal concept.
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Šmejkalová, Marie. "Římskoprávní kořeny zákonodárství krále Kentu Æthelberhta." PRÁVNĚHISTORICKÉ STUDIE 51, no. 3 (December 20, 2021): 71–83. http://dx.doi.org/10.14712/2464689x.2021.33.
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The article focuses on the Æthelberht’s Law Code from the beginning of the seventh century as it aims to analyse Roman law roots of Æthelberht’s legislation. A wide range of primary and secondary sources (both domestic and foreign) is used for the analysis. The introductory part of the paper provides broader historical context with an emphasis on king Æthelberht himself as well as on a description of his law code. Furthermore, the work analyses the Roman law roots of the Code by not only using The Digest of Justinian, The Institutes of Justinian but also the first known written source of Roman law – Lex Duodecim Tabularum. Additionally, a comparison of Frankish Lex Salica and Æthelberht’s Code is presented. The author aims to prove that the Anglo-Saxon law codes were, in fact, influenced by the Roman law.
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Jońca, Maciej. "O „prawniczych” znaczeniach terminu culpa w Kodeksie Teodozjusza." Vox Patrum 62 (September 4, 2014): 169–84. http://dx.doi.org/10.31743/vp.3584.
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The Latin term culpa on the legal ground is usually associated with responsibility for torts. Many of the contemporary works link this legal construction with Roman law, which till now is praised for its concision and clarity. Yet not all Roman sources present the clear dogmatic view on this point. Being permeated with rhetoric the Theodosian Code offers various meanings of this term, which considerably differ from the ideas elaborated by the classical Roman law. Nevertheless the code played substantial role in the process of development of law in the Medieval Europe.
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Dębiński, Antoni, Magdalena Pyter, and Michal Skřejpek. "Regulae Iuris: A Lasting and Universal Vehicle of Legal Knowledge." Białostockie Studia Prawnicze 27, no. 4 (December 1, 2022): 49–67. http://dx.doi.org/10.15290/bsp.2022.27.04.04.
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Abstract The article discusses the significance of Latin legal rules (regulae iuris, maximae iuris, dicta) for European legal culture. One of the areas explored by the authors is the relationship between the content of these rules and the language in which they were written down, i.e. Latin. Section one provides an overview of the origin, sources, and techniques of formulating legal rules by the jurisprudence of the ancient Roman state, with particular focus on the history of development of ius Romanum. After the dissolution of the Western Roman Empire (476 AD), the Church became the custodian of the values embedded in Roman law in Western Europe. Not only did she treasure precious scrolls containing ancient legal wisdom for the future generations but also implemented many Roman regulations in her internal legal system, as expressed in the paroemia Ecclesia vivit lege romana. This issue is addressed in section two. An important vehicle of disseminating the Roman legal thought, including its paroemias, was the Latin language. The ancient Romans contributed to its increasing circulation through rapid political expansion. Over time, Latin also elevated to the rank of the language of the Western Church. Because of that, it continued to prevail, also as a durable carrier of legal knowledge. This phenomenon is discussed in section three. The last section covers some facets of the use, application, and impact of Latin legal rules on modern legal science.
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Habib, Dr Habib ur Rehman, and Prof. Dr. Rashad Ahmad Saljoq. "مصادر قانون بطور سند." Al-Idah | Shaykh Zayed Islamic Centre, University of Peshawar 37, - 2 (January 12, 2020): 1–27. http://dx.doi.org/10.37556/al-idah.037.02.0368.
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Validity of the law depends on its derivation from legitimate sources. The term ‘source’ denotes the norm that validates a law. Western law is based on western legal tradition which is deeply rooted in Roman law and Bible. Statutes is one of the basic source of western law, however, constitution is superior source of western legal system. The sources of Islamic law, unlike to western legal system, are basically divided into primary and secondary sources. This study aims to compare the authority of sources of legal systems, Islam and western, and analyze the objections of orientalists on Islamic law and its sources.
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Бехруз, Х. Н. "О ВЛИЯНИИ РИМСКОГО ПРАВА НА ИСЛАМСКОЕ ПРАВО." Наукові праці Національного університету “Одеська юридична академія” 13 (May 14, 2019): 310–20. http://dx.doi.org/10.32837/npnuola.v13i0.278.
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В статье исследуется вопрос о характере и степени влияния римского права на исламское право в контексте функционирования правовых доктрин, источников, а также структуры права. Анализируются формы такого влияния. Отмечается, что определенные положения, принципы и нормы римского права оказали как прямое, так и косвенное влияние на формирование отдельных положений исламского права. Указано на усилении такого влияния начиная с XIX в., когда имело место прямое заимствование норм и институтов романо-германского права, сформировавшегося под прямым влиянием римского права. Речь не идет о прямой рецепции положений римского права. Некоторые из них были включены как результат исламизации сложившейся правовой практики путем принятия норм, не противоречащих основным положениям и принципам исламского права.
The article investigates the question on character and degree of impact of the Roman law on the Islamic law in context of the functioning of legal doctrines, sources and also structure of law. The forms of such influence have been analysed. It is noticed that certain provisions, principles and norms of the Roman law have rendered both dirrect, and indirect influence on formation of separate provisons of the Islamic law. It is specified on strengthening of such influence, since XIX century, when direct reception of the norms and institutes of the romano-germanic law generated under direct influence of the Roman law, took place. The direct reception of the provisions of the Roman law is not at issue. Some of them have been included as a result of the islamization of the established legal practice through the acceptance of the norms which do not contradict to the substantive provisions and principles of the Islamic law.
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Kosior, Wojciech J. "Age of a Victim as Crime’s Feature in Roman Law." Studia Prawnicze KUL, no. 4 (December 31, 2019): 91–109. http://dx.doi.org/10.31743/sp.10609.
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The conducted research revealed that the matter of age in the sources of Roman law appeared several times in a combination with the victim and was the feature of some delicts and crimes. The article demonstrates that in Roman law, in cases of unlawful acts, not only was the perpetrator’s age important, but also sometimes the age of the victim depended on the perpetrator’s liability. In modern law, we can also find the provisions in which the perpetrator’s liability depends on the age of the victim. For example, Article 200 § 1 of the Polish Penal Code can be listed here. The aim of the presented article is to describe unlawful acts (mostly crimes) occurring in Roman law, in which the perpetrator’s liability depended on the age of the victim. So far, the above-mentioned thematic hasn’t been described in the literature of the subject, because when the matter of age in this context was analyzed, the most attention was focused on the age of the perpetrator and his ability to bear liability. The result of the research was to discover and elaborate Roman law sources where in fact the perpetrator’s liability depended on the age of the victim. Selected examples are presented in the text.
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Kuryłowicz, Marek. "‘ILLOTIS MANIBUS’. HENRYK KUPISZEWSKI I WSPóŁCZESNE DYSKUSJE ROMANISTYCZNE W POLSCE." Zeszyty Prawnicze 15, no. 2 (December 4, 2016): 99. http://dx.doi.org/10.21697/zp.2015.15.2.05.
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“Illotis Manibus”: Henryk Kupiszewski and the Contemporary Discussion of Roman Law in PolandSummaryIn his discussion of the significance of Roman law Henryk Kupiszewski referred to Gaius’ observation that the study of the lawcould not be conducted “with unwashed hands” (illotis manibus), viz.without a knowledge of the historical sources. In my opinion it is imperative to remind ourselves of this today, when some Polish scholarsof Roman law are criticising source studies and historical research onRoman law, and opting instead for modernity and a future examinedprimarily from the fuzzy perspective of decodification. In Prawo rzymskie a współczesność, his book on Roman law and the present times,Kupiszewski emphasised that the principal area of research on Romanlaw could take was still the examination of the work and achievementof the iurisprudentes, and that any other strategy would put it on thepath for self-destruction. Roman law studies are, of course facing new,contemporary problems. For instance, it has been observed that effectively the historical and legal awareness of today’s scholars of civil lawno longer encompasses Roman law. So we should be trying to preservethe connection of Roman law with the disciplines of positive law, andespecially making a concerted effort to work on a synthesis of Romanlaw as an introduction to contemporary private law. Furthermore, inour research we should take into consideration the close connectionbetween Roman law and other disciplines relating to antiquity – another point Kupiszewski made. We should also view the tradition ofRoman law as the common denominator in the European consensus onthe law. Hence the purposefulness of continuing the basic trend in thestudy of Roman law, from the aspect both of its ancient history and ofits European tradition and present-day manifestations.
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Mehmeti, Sami. "The influence of canon law on ius commune in its formative period." SEEU Review 11, no. 2 (December 1, 2015): 153–64. http://dx.doi.org/10.1515/seeur-2015-0034.
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AbstractIn the Medieval period, Roman law and canon law formedius communeor the common European law. The similarity between Roman and canon law was that they used the same methods and the difference was that they relied on different authoritative texts. In their works canonists and civilists combined the ancient Greek achievements in philosophy with the Roman achievements in the field of law. Canonists were the first who carried out research on the distinctions between various legal sources and systematized them according to a hierarchical order. The Medieval civilists sought solutions in canon law for a large number of problems that Justinian’s Codification did not hinge on or did it only superficially. Solutions offered by canon law were accepted not only in the civil law of Continental Europe, but also in the English law.
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Plisecka, Anna. "Accessio and specificatio reconsidered." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 74, no. 1-2 (2006): 45–60. http://dx.doi.org/10.1163/157181906776931126.
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AbstractContrary to the dominant opinion of contemporary Roman law studies, accessio and specificatio were not considered in ancient Roman law as independent modes of acquisition of ownership. They became regarded as such only in the 12th Century. In ancient Roman law, what later came to be called accessio caused only an extension of the ownership of the principal thing to include also the accessory without, however, giving rise to a new ownership. On the other hand, what later came to be called specificatio caused the extinction of the object, both from the physical and from the juridical point of view. If, in place of the extinguished thing a new one came into existence it could have been acquired by occupatio. Since the technical juridical terms accessio and specificatio were unknown to the Roman jurists, the cases provided by ancient sources cannot be clearly divided into these categories. Furthermore such classifications, since external to the sources, create superfluous problems. In order to attribute ownership the Roman jurists examined the identity of an object rather than classified cases as accessio or specificatio. The principal texts on which the argumentation is based are: D. 6.1.5.1pr.–1, D. 6.1.3.2, D. 41.1.7.7 und D. 41.1.7.8–9.
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Małozięć, Cezary August. "Legal comparative analysis of the Roman societas and the contemporary civil law partnership in Polish and German law." ASEJ Scientific Journal of Bielsko-Biala School of Finance and Law 22, no. 2 (July 3, 2018): 29–34. http://dx.doi.org/10.5604/01.3001.0012.4274.
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The paper presents legal comparative analysis of the Roman societas and the contemporary civil law partnership in Polish and German law. The author analyses the origins and essence of a civil law partnership, then describes similarities and differences of internal and external relations between the partners of a civil law partnership. The analyzed sources are: the Institutes of Gaius, the Digest of Justinian, and Polish and German Civil Codes. The author stresses that the structure of the contemporary civil law partnership in Polish and German legal systems is still very similar to the Roman societas, mainly because of its common origin.
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Fiori, Antonia. "Roman Law Sources and Canonical Collections in the Early Middle Ages." Bulletin of Medieval Canon Law 34, no. 1 (2017): 1–31. http://dx.doi.org/10.1353/bmc.2017.0000.
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Jurewicz, Aldona Rita. "DOPUSZCZALNOŚć WIELOŚCI MIEJSC ZAMIESZKANIA W PRAWIE NIEMIECKIM. WZORCE HISTORYCZNE." Zeszyty Prawnicze 14, no. 4 (December 5, 2016): 79. http://dx.doi.org/10.21697/zp.2014.14.4.04.
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Permission for Multiple Places of Residence in German Law. Historical PatternsSummaryThe author uses a specific example, multiple residence under German law, to show the impact of Roman law on many of the modern European legal systems. The observations made by the editors of the German Bürgerliches Gesetzbuch (BGB) and the sources and literature they used show that Roman law was still relevant and universal in the 19th century, the age of the great codifications. Today, too, it is admissible under German law to have more than one residence and the issue is not controversial.
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Zadorozhny, Yuriy, and Galina Zadorozhnya. "The principle of bona fides: from the doctrine of Roman law to national justice." Slovo of the National School of Judges of Ukraine, no. 1(42) (September 4, 2023): 22–29. http://dx.doi.org/10.37566/2707-6849-2023-1(42)-2.
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The article examines the essence of the principle of bona fides, formed by the doctrine of Roman law, reveals its essence and analyzes the expediency of applying bona fides in the process of national justice. It is clarified that the principle of bona fides was the flagship in Roman law, but in the national legal system it is only an auxiliary principle. It was determined that the practical essence of bona fides in the judicial proceedings of the Roman legal system was that the judge, deciding this or that dispute, had the right to depart from the normative prescription if it contradicted bona fides, and decide the court case not «according to the law», but according to conscience, i. e. fairly. It was concluded that the Supreme Court, as the highest court in the judicial system of Ukraine, should have the exclusive right to apply bona fides when deciding court cases in the above-mentioned legal disputes, which enables it to use bona fides as the main, not auxiliary, source of law when deciding legal disputes. which is consistent with its exclusive judicial mission, namely: to ensure stability and unity of judicial practice, which is extremely important for strengthening the authority of the Supreme Court in society and in the court system of the Ukrainian judiciary. It was established that the national legal system inevitably recognizes precedent at the legislative level as a source of law that is applied by the court. This will enable the stability and unity of judicial practice, the restoration of violated individual rights, and will also establish the supremacy of justice over the law. Key words: principle of bona fides, justice, principles of law, Romano-Germanic legal family, Roman law, sources of law, judicial precedent.
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Martin, Susan. "The Case of the Collapsing Watercourse: Builders' Responsibility for Damage in Classical Roman Law." Law and History Review 4, no. 2 (1986): 423–37. http://dx.doi.org/10.2307/743834.
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The jurists of the classical period of Roman private law (50 B.C.—250 A.D.) encountered a variety of legal problems arising from the activity of those employed in the city's building industry. This segment of the Roman economy was prosperous and busy. Yet, despite the Romans' zeal for construction, a detailed description of how building projects were organized has proved illusive. This is the result of two factors. First, the Romans, unlike the Greeks, tended not to preserve on stone details about the actual construction of their edifices. A second, more general cause is found in the nature of construction as an enterprise. Although building furnishes a basic need, the demand for it is episodic and unstable. Forces of labor and supplies of materials are procured in response to specific commissions. In addition, there are many possible ways in which these productive forces can be organized, and building is typically characterized by a high degree of diversity in regard to methods of organization. For these reasons, builders and building have not been particularly accessible topics for researchers. It is only in the juristic sources that we get a relatively full picture of the activities of builders at Rome.
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Valentinova, Dorothea. "Iustitia and Corruptio in Liber Constitutionum sive Lex Gundobada." Studia Ceranea. Journal of the Waldemar Ceran Research Centre for the History and Culture of the Mediterranean Area and South-East Europe 12 (December 30, 2022): 215–34. http://dx.doi.org/10.18778/2084-140x.12.35.
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After 476, Flavius Gundobadus, King of the Burgundians (473–516), sought ways and means to consolidate and strengthen his power, including through legal regulation of the relations between the Burgundians themselves, on the one hand, and between the Burgundians and the Gallo-Romans, on the other. Thus, Liber Constitutionum sive Lex Gundobada was issued, the main purpose of which is the legal regulation of the complex relations in the kingdom, through a codification of the preserved customary law – an embodiment of tribal traditions, practices, and customs, with reasonable use of Roman legal ideas, notions, and norms.
The translation and analysis of selected provisions from Lex Gundobada in this paper show the extent to which the Burgundians perceived, received, adopted, and adapted some of the most valuable Roman legal and moral rules and principles, especially the Roman concepts of iustitia and corruptio, and how the rights of both the Burgundians and the Romans were regulated and protected through them.
Lex Burgundionum is part of a series of legal Barbarian codes, compiled, adapted, published, and applied in the Barbarian regna between the 5th and 9th centuries. These codes are one of the significant and true sources for the historical reconstruction of the socio-political, socio-cultural, and legal-administrative transition from the late Roman Empire to the German kingdoms and early medieval Europe. They manifest how historically the arena of clashes, confrontations, and wars between Romanitas and Barbaritas gradually became a contact zone of legal reception, of cultural, legal, and socio-political influences, from which a new world will be born, a successor to the old ones, and a new legal system – the Romano-Germanic one.
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Марченко, Михаил, and Mikhail Marchenko. "FEATURES OF JUDICIAL PRECEDENT IN THE ROMAN-GERMAN SYSTEM OF LAW." Journal of Foreign Legislation and Comparative Law 2, no. 1 (March 16, 2016): 0. http://dx.doi.org/10.12737/18172.
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The article deals with the main features and characteristics of judicial precedent in the Roman-German law system in comparison with the “classical” precedent — a source of Anglo-Saxon law. Among the features of the system of judicial precedent in the Roman-German law are the following: ambiguity of the phenomenon of precedent and its continental doctrine and concepts; secondary and dual nature of the precedent over other sources of law of that legal family; selective attitude to different branches of law; diversity of the legal basis of precedents in different countries and differentiated approach to the recognition of legal effect of precedents. The technical and legal aspects of a precedent in the system of the Roman-German law, in particular the special nature of the publications of decisions of the higher courts and others are pointed out. The main features and characteristics of judicial precedent and its doctrine in the Roman-German law are disclosed by the example of case law of Germany, France, Spain, Italy and some other countries.
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Kuzubov, A. A., and A. N. Maksimenko. "Essence of the Stipulation in the Roman Private Law." Legal Order and Legal Values 1, no. 2 (July 17, 2023): 47–55. http://dx.doi.org/10.23947/2949-1843-2023-1-2-47-55.
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Introduction. The issues of stipulation were widely covered in the ancient Roman Law sources of knowledge. Throughout the history of Roman Law, the institution of stipulation has undergone some changes. The stipulation arose in the archaic period and got the greatest development in the classical era. Within the Roman Private Law course, which is obligatory for substantial study of the Law curriculum, the special place is allocated to the topic of stipulation. The aim of the present study is to provide the scientific analysis of the Roman Law sources of knowledge with regard to the subject matter of the institute of stipulation in the Roman Private Law, finding out its structural features, origin and evolvement in the historical perspective.Materials and Methods. The legal, organisational, worldview, methodological and other aspects of studying the stipulation within the Roman Private Law have been considered by applying the methods of scientific cognition generally accepted in Russia: general scientific (dialectical) and specific scientific (analysis, synthesis, historical case specific, logical, etc.) methods.Results. The stipulation is an unilateral agreement (contract) used in the Roman Law, concluded orally (verbally) between the parties (debtor and creditor) in the form of solemn declarations regarding the proprietary rights of the Roman citizens and foreigners. The mandatory attributes of the stipulation are: the grounds, the subject, the parties, the form and classification. Various juridical factors used to be the grounds for arising the stipulation. Alongside, according to the Roman Law School, the provided obligation was referred to the range of conventional (contractual) ones, was unilateral and had an abstract nature. Any obligation comprising the ownership right as well as the right of possession could constitute the subject of the stipulation. The provisions on monetary assessment timeframe of an object of obligation, various conditions for terminating the stipulation, circumstances excluding the defense's claims in the lawsuit based on the stipulation, and mandatory requirements for making a deal have been considered in the article. The parties to the agreement were both Roman citizens and foreigners. The deal could be made for the benefit of a creditor as well as his heirs. The obligations within the stipulation and the features of slaves’ participation in the agreement have been considered. In such agreements the parties were represented by: guardians, adstipulators, donators. The timeframe for fulfilling an obligation should have been indicated as a condition for concluding an agreement, and the period for claims in the lawsuit began from the moment of detecting the violations of an obligation, which took place during the factual happening of an event in the frame of the agreement. The potential perspective has been highlighted during studying the history of obligations within the stipulation on the territory of the Bosporan kingdom, being the part of the Roman protectorate. The examples of the institution of stipulation acceptance in the current Law of Obligations have been considered.Discussion and Conclusions. The conducted research has theoretical and practical value and is targeted at the educators providing professional training to future lawyers. Thus, one of the topics proposed for including into the Study Module “Roman Private Law” is the stipulation, which is traditionally studied within the Roman Law of Obligations.
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Kryzhevskyi, A. "The influence of the reception of Roman law on the development of civil and criminal law in Rus." Uzhhorod National University Herald. Series: Law 1, no. 76 (June 14, 2023): 30–36. http://dx.doi.org/10.24144/2307-3322.2022.76.1.4.
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The article examines the influence of the reception of Roman-Byzantine law on the development of civil and criminal law in the Rus by comparing specific provisions of normative legal acts. Various types of reception are considered, including direct, indirect, and mediated. The article focuses on the influence of the Ecloga» and the «Nomocanon XIV Titles» on the development of legislation and sources of law in Kyivean Rus (The Russkaya Pravda, The Church Statute of Prince Yaroslav). The elements of Roman-Byzantine law that were borrowed and adapted in legal relationships in the Rus are analyzed, as well as how this affected the formation of its legal system and the consequences it had for the further development of Rus' law. During the comparative analysis of the norms of Roman-Byzantine and Rus' law, the author identified a significant reception of provisions regulating inheritance relations. The author concludes that the reception of Roman-Byzantine law was more noticeable in civil law than in criminal law. It is shown that the reception of Roman-Byzantine norms of criminal law was insignificant, and the system of punishments was based on Rus' customary law, where fines predominated rather than executions and physical injuries. It is also revealed that direct reception (i.e., borrowing legislative decisions) was inferior in volume to indirect reception in the Rus state, which was carried out by applying revised and re-synthesized legal material used to regulate economic relations and ideologically shape certain political realities. It is proved that, despite the existence of various types of reception of Roman-Byzantine legal norms in the legislation of the Rus, the latter is the result of the development of Rus society and legal consciousness. It is noted that Ukrainian law benefited from the favorable influence of Roman law during the historical development, although its national peculiarities were preserved.
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Monnickendam, Yifat. "Late Antique Christian Law in the Eastern Roman Empire." Studies in Late Antiquity 2, no. 1 (2018): 40–83. http://dx.doi.org/10.1525/sla.2018.2.1.40.
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To date, early Christian sources have drawn the scholarly attention of theologians, scholars of biblical commentary, and historians, but not of legal historians, presumably because such sources do not offer sufficiently substantial material for legal historical research. Nevertheless, a few studies have blended legal history and late antique Christianity, and an analysis of these studies shows they are based on a “centralist,” or “formalist–positivist,” conceptualization of law. In this paper I review the scholarship of legal traditions in the eastern Roman Empire— namely, Roman law and Greek legal traditions, the halakha in rabbinic literature, and the halakhic traditions in Qumranic literature and in the New Testament—and contextualize it within developments in legal theory and legal sociology and anthropology (that is, the rise of legal pluralism). This review shows that developments in legal theory, in legal sociology and anthropology, and in legal history of the late antique world are producing new paradigms and models in the study of late antique legal history. These new models, together with new methods in reading early Christian non-legal texts of the eastern Roman Empire, can be utilized in the study of early Christianity, thereby opening gateways to the study of its legal traditions and revealing independent legal traditions that have remained hidden to date.
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Kubiak, Przemysław. "STAN NIETRZEŹWOŚCI JAKO „AFEKT” W RZYMSKIM PRAWIE KARNYM?" Zeszyty Prawnicze 15, no. 1 (December 5, 2016): 33. http://dx.doi.org/10.21697/zp.2015.15.1.02.
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Drunkenness – a “Passion” in Roman Criminal Law?SummarySince ancient times jurists and lawyers have had to handle offencesconnected with alcohol abuse. There are only three texts on drunkenness in the Roman legal sources: two relate to offences committed byinebriate soldiers, and the third contains the basic division into intentional offences, accidental offences, and crimes of passion. In all threecategories drunkenness was a mitigating factor, which may be surprising for modern lawyers. Other Roman sources present public opinionon drinking, which seems to have depended on the circumstances– heavy drinking and alcoholism were disapproved of. A precise analysis of the rhetorical writings shows elaborate distinctions betweenintentional and unintentional acts. Drunkenness was regarded as anemotional state which could influence the penalty, but the specific circumstances of the offence were crucial. The rhetorical works confirmthe views presented in poetry and philosophy. Contrary to the legalsources, the facts seem to show that a judge could sentence an offenderto a severe or mild punishment, or even acquit him if drunkenness hadbeen a factor contributing to the offence. The rhetorical works may beconsidered to provide not only an important theoretical background tothe legal sources, but also crucial supplementary information givinga better insight into Roman criminal law.
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Dajczak, Wojciech. "PROBLEM „PONADCZASOWOŚCI” ZASAD PRAWA RZYMSKIEGO. UWAGI W DYSKUSJI O „NOWEJ EUROPEJSKIEJ KULTURZE PRAWNEJ”." Zeszyty Prawnicze 5, no. 2 (June 14, 2017): 7. http://dx.doi.org/10.21697/zp.2005.5.2.01.
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The Issue of „ Timeless” Nature of the Rules of the Roman Law. Remarks in the Discussion on „the New European Legal Culture”SummaryWith in the scope of a discussion on the new European private law opinions regarding the need for a realist revolution are formulated, which would aim at conquering its formal systematics and dogmatic character. From this perspective the references to Roman law are criticised in relations to establishing an extranational private law. They are called neo-pandectism and qualified as dogmatic trends in the European private law.Referring to that discussion I ask in the article whether the realistic thinking about law allows to ignore the durable rules originating from the Roman law. While presenting the characteristics of the realism of the Roman jurists above all I indicated the conviction of the existence of rules that were primary to law, which should be taken into account in the lawyers’ evaluations.I voiced an opinion that seeing the durability of some of the Roman rationes decidendi there is no point in discussing the references to the Roman tradition in the context of the dispute between the realism and formalism but as an element of a dispute regarding the issue what the realistic thinking about law is.On the basis of the used sources I formulated a conclusion that the realistic thinking about law does not allow to ignore the reflection on the durability of the rules originating from the Roman law when we assume that the basis of the reasonable actions of the law-making bodies as well as the bodies which apply the law should be requirements of practical reasonableness, which have a primary nature to law