Vid Žepič | University of Ljubljana (original) (raw)

Papers by Vid Žepič

Acta Maceratensia. Perspektiven vom XVI. Jahrestreffen der Jungen Romanistinnen und Romanisten (11. bis 13. Mai 2022), OPVSCVLA. Quaderni di studi romanistici, III serie, n. 3, 2024

The evolution of the Roman pledge reveals a trend towards balancing the rights of both the pledgo... more The evolution of the Roman pledge reveals a trend towards balancing the rights of both the pledgor and the pledgee. However, in post-classical imperial law, the interests of the debtor appeared to have taken precedence. Nevertheless, it is crucial not to overemphasize the legislature’s bias towards the debtor, as the preservation of credit safety remained a prominent value even in Justinian’s legislation.

Bogoslovni vestnik/Theological Quarterly, 2024

Monaldus of Capodistria (Monaldus Iustinopolitanus) can be considered the first learned jurist op... more Monaldus of Capodistria (Monaldus Iustinopolitanus) can be considered
the first learned jurist operating in the territory of present-day Slovenia. In his work Summa de iure canonico, he addressed not only issues of canon law but also, and more importantly, civil law matters. This work is classified among penitential sums (summae confessorum). This article provides a detailed examination of Monaldus' Summa, starting with an overview of its origin, type, and significance. It then turns to a specific analysis of how Monaldus addresses the pledge contract (pignus). This legal institution attracted significant attention in canonical literature due to the enhancement of Roman law foundations. Given the biblical prohibition against usury, it is imperative to underscore the prohibition of antichresis: an agreement allowing the pledgee to appropriate the income and profits of the pledged item without deducting their value from the principal. While Monaldus’ work did not introduce substantial new ideas, it gained popularity among readers thanks to its clear, alphabetical presentation
of terms and its effective compilation of legal sources from both the past and the present. It was more practical and accessible for confessors, who lacked the time or expertise to read lengthy, logically systematised treatises.

Zbornik Pravnog fakulteta u Zagrebu, 2023

Throughout history, the legal regulation of holidays has been the product of human needs for rest... more Throughout history, the legal regulation of holidays has been the product of human needs for rest and entertainment, religious beliefs, and pragmatic economic imperatives dictating the optimal use of time to produce goods. The first part of the article examines the significance of the division between dies fasti and dies nefasti and explores the categorisation of holidays in the Roman pagan era and their legal implications. The author then looks at the origins of Sunday as a day of rest and considers Theodosius' reform of the Roman calendar. This reform established the liturgical year in the emerging Christian state, and enduringly shaped the calendar of most European countries. The third part considers the attitude of the late Roman state towards Jewish and pagan festivals, and the innovations in medieval ecclesiastical legislation concerning holidays. The final section of the paper reflects on the role of tradition in the state's recognition of religious festivals as public holidays.

Bogoslovni vestnik / Theological Quarterly, 2023

Pope Benedict XVI’s 2011 address to the Bundestag can be interpreted as a comprehensive synthesis... more Pope Benedict XVI’s 2011 address to the Bundestag can be interpreted as a comprehensive synthesis of his perspective on the foundations of law as a subsystem within society. He underscored the paramount importance of constitutional democracy and the state, governed by an implementation of the rule of law that is both free and dedicated to upholding human dignity. Furthermore, he exhorted politicians and citizens alike to persistently pursue justice, to critically assess the law as responsible individuals, and to aspire to higher moral standards. In addition to this, he cast doubt on the adequacy of scientific legal positivism and scientism in comprehending law and the realm of reason. Stemming from his scepticism concerning the sufficiency of positivism in the formulation and interpretation of law, he emphasized the significance of European “legal heritage”. According to Benedict, this tradition originated from the cultural triangle of Jerusalem, Athens, and Rome, and serves as an indicator of a “rational legal order”. As Pope Benedict XVI’s address was directed towards scholars in the field of jurisprudence and legal historians, my analysis of the speech is accompanied by a brief examination of the role of the notion of “legal tradition” within the selected European contemporary legal systems.

v: Korošec, D., Kambič, M., Zupanič Slavec Z., Kazensko pravo in infekcijske bolezni, Uradni list... more v: Korošec, D., Kambič, M., Zupanič Slavec Z., Kazensko pravo in infekcijske bolezni, Uradni list, Ljubljana, 2023, 127–154. (Izsek / Excerpt)

Zgodovinski časopis. Historical review., 2023

The paper at hand aims to examine the elements of public law within the framework of Roman priva... more The paper at hand aims to examine the elements of public law within the framework of
Roman private law, focusing on the involvement of a legal entity governed by public law in
legal relationships with private law subjects.
The introduction of the paper centres around the concept of public law (ius publicum), which can be seen as a signifi cant achievement of Roman classical jurisprudence in the context of legal historical development. In a broad sense, ius publicum referred to the norms governing the constitutional and administrative position of the Roman State, municipalities, and the relationship between the Roman State and other political communities. In a narrower sense, though not adopted in the European legal tradition, every rule falling within ius publicum was considered a mandatory (cogent) norm. The subsequent part of the discussion explores different approaches to differentiate between private law, public law, and mixed public-private legal relationships.
The analysed relationships are categorized based on the involvement of public legal entities in relation to private law subjects, whereby the public legal entities assume positions either of authority, supervision, or contractual engagement.
As the sovereign authority, the State unilaterally exercised prerogatives derived from a social consensus that recognized restrictions on property rights in the public interest. This included institutions such as expropriation, debtor-reliefs (moratoria), and the imposition of various public burdens, particularly taxes. As a controller, the State authorized certain acts undertaken by private parties when the private party alone could not fully enforce them to maintain public order. During the imperial period, the use of publicity requirements (such as public deposit, introduction of public deeds, registry, and involvement of administrative bodies in personal status matters) became more widespread. Additionally, the Roman State engaged in legal transactions with private individuals to pursue its own property interests, with tax leases being a notable feature. These tax-lease transactions developed rigorous public law securities, characterized by strong formality.
The objective of this paper is to determine whether and how Roman private law deviated from its fundamental principles as a result of the involvement of a public-law legal person, leading to the creation of specific “mixed” public-private legal relationships. The introduction of public law elements into private law was not favoured by Roman jurists and was in the legal literature intentionally discouraged. However, an analysis of private-law relationships with a significant public-law element demonstrates that, in some cases, jurists, particularly the imperial legislature, departed from the fundamental principles of private law. This can be attributed to the bureaucratic nature of the Roman state, which became particularly evident in the late classical period (the 2nd and 3rd centuries). The process of bureaucratization reflected in the adoption of the extraordinary procedure, which assessed many of the mixed public-private law relationships described above. Some scholars considered the extraordinary procedure as a precursor to the modern administrative procedure.
Considering the trends in modern law, the public elements within Roman private law can be regarded as a sign of progressive legal thought. These public-law elements were manifested in economic, legal, and physical inequalities between the parties involved in a legal relationship, unilateral interference by the public party in the rights and obligations of the subordinate party, non-transferability or limited transferability of rights, the mandatory nature of legal regulations, and the increased formality of legal acts, including authorizations and confirmations by public authorities and entries in public registers. The evolution of the relationship between public and private law in Roman legal history was mainly infl uenced by three tendencies: the bureaucratization, étatisation, and Christianization of Roman society.
The dominant role of private law was not threatened but rather relativized. Roman private law became increasingly intertwined with public law, which aimed to serve the public interest (utilitas publica).

Journal on European History of Law, 2023

In spite of the variety and multitude of judicial authorities, a survey of the judicial insignia ... more In spite of the variety and multitude of judicial authorities, a survey of the judicial insignia in continental Europe between the High Middle Ages and 18th century reveals a surprising uniformity and constancy both in the particular as well as the ius commune legal tradition. The sword of Justice, the Rod of Justice, the Judge’s chair, his robes and book figure prominently in the medieval illuminations. Insignia formed the identity of the judge and served as a reminder of his transpersonal character: the judicial authority was hence represented through the display of the inisignia. The aim of the article is to defend the proposition that the exterior signs of delegated judicial authority in pre-codification continental Europe manifested themselves in a rather consistent appearance because they reflected a common idea of a delegation of judicial authority, which was to be accompanied by the visual transfer of materialised symbols.

Keria, Studia latina et graeca , 2022

One of the particularities of Roman legal literature is that where one might expect definitions, ... more One of the particularities of Roman legal literature is that where one might expect definitions, one finds etymologies instead. What introduced the penchant for etymology into the works of the Roman classical jurists was the Stoic philosophy, following the Hellenistic notion of a natural relation between things and their denominations. Ancient etymologies, pursuing different objectives from modern (scientific) etymology, were primarily a tool for understanding the contemporary world. The purposes of legal etymologies were manifold: they served didactic, historicising, policy-making, legitimising and dogmatic functions. The paper examines the etymological argument in legal literature from the perspective of Roman legal language style, which was influenced by rhetoric. After introducing the sources and the soundest examples of Roman legal etymologies, the paper discusses the effects of etymology on the legal dogmatics. Etymologies are presented as one of the numerous argumentative topoi, which should not be credited with too much influence on their own. Nevertheless, etymologies should not be perceived as trivialities that somehow diminish the lucid outlook of the Roman jurisprudence. In fact, they are authentic evidence of the ancient beliefs and a reflection of the juridical habitus, whose didactic and mnemonic value persisted in the European legal science as long as into the 18th century.

Studia Historica Slovenica. Časopis za družboslovne in humanistične študije / Humanities and Social Studies Review, 2022

Transmissio actorum (Aktenversendung) designates a procedural institution of the Roman-Canon crim... more Transmissio actorum (Aktenversendung) designates a procedural institution of the Roman-Canon criminal as well as civil procedure, which authorised lay judges in the Early Modern Era to send case files to various judicial colleges in the event of insurmountable doubts regarding the application of complex rules of the learned law. As rule, the entire case file was sent to the faculties of law, foreign municipal or regional courts as well as to the higher administrative and judicial authorities. The impartial opinions of the learned jurists may be regarded as a form of formalized expertise in the legal issues. The courts were, according to customary law, principally obliged to follow the instructions of the experts, which regularily took form of a draft judgment. The research evaluates transmissio actorum as a typical institute of reception of Roman law in the European context. Furthermore, it deals with the question whether and in what forms the institute, its predecessors or surrogates existed in the Austrian hereditary lands. The absence of the transmissio actorum should be identified as one of the causes of the delayed and less intense reception of Roman law in this part of the Holy Roman Empire.

Zbornik znanstvenih razprav / Ljubljana Law Review, 2022

The Roman hypotheca, unless agreed otherwise, originally bestowed upon the creditor (pledgee) mer... more The Roman hypotheca, unless agreed otherwise, originally bestowed upon the creditor (pledgee) merely a claim to transfer the pledged object into his possession, when the payment was due. Owing to the weak protection, the creditor strived to strengthen his pecuniary interests by supplementary covenants. To prevent abuses by the economically and socially superior creditor, the classical jurists sought to attain a balance of interests of the contracting parties. The fundamental elements of their effort were the recognition of pledgee’s right of sale as an essential element of the pledge contract on the one hand, and the recognition of the pledgor’s right to the surplus of purchase price on the other. Kaser’s thesis that the Roman pledgee enjoyed a particularly strong legal position as a distinctive character of Roman law has been proved to be an exaggeration even in the light of the development of classical law. In the post-classical period, a shift towards prioritising the position of the pledgor is noticeable. It corresponds to a general tendency of post-classical law to favour the debtor as a stereotypically weaker party. Among the innovations of the period, the limitations regarding the object of the pledge were introduced, new interpretative approaches concerning the pledge of the increments were accepted, lex commissoria was entirely prohibited, the creditor’s discretion over the realisation of the pledge was restricted, and the State’s control over the sale of the object of pledge was strengthened. The protective safeguards established through imperial legislation can be seen as a symptom of the declining economy and although they improved the pledgor’s social standing, they reduced the supply of the credit.

Edge of Tomorrow: the Next Generation of Legal Historians and Romanists: Collection of Contributions from the 2022 International Legal History Meeting of PhD Students, 2022

One of characteristic features of ancient law was a particular form of restriction on contractual... more One of characteristic features of ancient law was a particular form of restriction on contractual autonomy in the form of provisions on the non-pledgeability of items indispensable for the social or economic life of citizens. This paper outlines the evolution of the closely related provisions in the Code of Hammurabi, the Decalogue, the Code of Gortyn, and Roman Imperial Constitutions, and considers the underlying motives for their enactment. A particular question is whether the relevant norms on non-pledgeability of the Roman Imperial period were motivated by a Christian tendency to favour the debtor (favor debitoris).

Journal on European History of Law, 2022

The article outlines the development of official criminal policy against the spread of infectious... more The article outlines the development of official criminal policy against the spread of infectious diseases, especially the plague, in continental Europe from antiquity to the end of the 18th century. The crimes and their punishments are presented on the basis of city statutes, early modern penal codes and contemporary legal doctrine. Surprisingly, even though European countries faced devastating plague pandemics, no significant criminal law related state intervention in pandemics took place until the 16th century, except in a number of coastal cities of the Mediterranean and northern Italian cities. The prosecution of sanitary crimes was the business of sanitary magistrates, who were in charge of wide criminal jurisdiction. The ‘pandemic criminal law’ was characterised by harsh penalties resembling martial law, criminalisation of both commission and omission, intentional and negligent offences, and the departure from the principle of legality when it was already an established legal principle.

The period of legal history known as usus modernus, from the 16th to the 18th century, was marked... more The period of legal history known as usus modernus, from the 16th to the 18th century, was marked by amalgamation of legal institutions of Roman law and institutions, pertaining to the particular legal tradition (iura propria), thus forming a mixed law system (“ius romano-germanicum”). The thesis discusses the results of eclectic methodical approach in the light of the so-called “servitudes in the ius commune”. For learned jurists, Roman praedial servitudes represented a dogmatic model for conceptualization and incorporation of heterogeneous feudal phenomena into the categories of the ius commune as well as into the roman-canon legal procedure. In that era rights of local rural communities (or of their members) on the
common land, various rights of neighbours (“legal servitudes”), the institution of serfdom, the right of patronage and advocatus, various types of banalités, regalia rights (such as the right of patrimonial jurisdiction) and international servitudes were classified as servitudes. The efforts to harmonise the institutes of Roman and particular law caused decomposition of fundamental principles of the Roman law of servitudes. They were proclaimed inconvenient and unnecessary Roman »legal subtleties« (subtilitates iuris) which tended to be omitted in legal practice. Consequently, servitude was, in view of the theory of double domain, applied even to one’s own property. Some servitudes could be alienated separately from the dominant property. The dominant property could consist in a community of pieces of land (res universalis). Contrary to the established Roman principle, the rule in ius commune dictated that servitudes existed in a performance of a positive duty of the owner of the burdened property. There are only few common features of previously listed legal relationships, which differ substantially from Roman and modern praedial servitudes: in a nutshell, they could be described as perpetual property rights with in rem character, which were bound to a piece of land rather than to a person. The reason for such a peculiar and highly controversial classification of legal relationships into the
category of servitudes derived from the Roman-canon legal procedure, still based on legal actions, and from the changed scientific approach to civil law reasoning. The period of usus modernus was marked by convergence of legal theory and practice. Consequently, learned jurists of this period had to overcome overly rigid principles of the established legal doctrine (communis opinio).

Pravnik, 2021

The intertwinement of Roman (civil) law and canon law in the medieval Europe is commonly designat... more The intertwinement of Roman (civil) law and canon law in the medieval Europe is commonly designated as “both laws” (ius utrumque). Medieval canon law was a universal law, which emerged from ecclesiastical as well as ancient Roman legal sources and was at its core a product of scholastic ecclesiastical science of canon lawyers as well as papal legislation. The article outlines three centuries of development and the core content of ecclesiastical legal collections in the period of the classical age of canonist science (12th−14th centuries). The period is characterised primarily by the private collection of canon sources Decretum Gratiani (1140), the most extensive medieval official codification – Liber Extra (1234) as well as its additions Liber Sextus (1298), Clementinae (1317) and Extravagantes. The mission of the papal legislation was to upgrade Roman law provisions in the light of Gospel and theological teachings. The law-making activity of the Church, resembling the vocation of Roman praetor, facilitated the reception Roman law in a society governed by the values of Christian morality.

Acta Histriae, 2022

Despite the fact that many Roman jurists were faced with the outbreak of the devastating Antonine... more Despite the fact that many Roman jurists were faced with the outbreak of the devastating Antonine plague (169−194 AD) and that the major parts of the Justinian’s codification were redacted during the first outbreak of the plague in Constantinople (531), there is no direct mention of the possible effects of the epidemics on the civil law and procedure. It is therefore dubious why medieval legal scholars, although confronted by the persistent threat of the Black Death, hesitated to write on it. It was not until the 1520s that Italian jurists, Ripa and Previdelli, composed tractatus on the so-called plague privileges (privilegia pestis). The authors creatively discussed to what extent the legal practice could approach the urgent easing of the rather rigorous principles of the ius commune. Both Ripa and Previdelli focused themselves on the privileges affecting the contract law, wills, and the law of civil procedure. There are two conflicting conceptual views the jurists had to balance: firstly, the plague as perceived by Bartolus was a war of God against the wicked people. Therefore, jurists tended to grant many military privileges, to the people vexed by the plague. These relaxations of law however, had to be applied in a restrictive manner. The plague, as a just punishment for the sins could not bolster an imprudent grant of the privileges. The tractatus of Ripa and Previdelli remained an authoritative statement of communis opinio doctorum up to the codification era. Furthermore, they have influenced rather scarce provisions of modern European civil codifications. The paper focuses on the provisions of the Austrian General Civil Code (1811) concerning the legal regime during the epidemic outbreaks. The paper shows that the legal science of the early modern era, vexed by a constant threat of the epidemic outbreak, did not stay silent on the relaxations of legal rules in a highly discordant circumstance of the health emergency periods.

Zbornik znanstvenih razprav / Ljubljana Law Review, 81 (2021), pp. 201-238, 2021

The notion of a just cause of traditio (iusta causa traditionis) has always been one of the most ... more The notion of a just cause of traditio (iusta causa traditionis) has always been one of the most controversial issues of the Romanist science. The Digest contains several conflicting passages from Roman legal literature. Even the commission of Justinian`s compilers did little in Justinian’s Institutiones to harmonise the ambiguities on one of the core issues of civil law, namely whether delivery (traditio) as a fundamental legal transaction requires a valid legal basis for its effectiveness. According to the currently prevailing opinion, the traditio of classical as well as Justinian’s era was a causal transaction. The precise nature of this causality, however, remains obscure. The article focuses on the well-known antinomy between Julian’s passage D. 41, 1, 36, which presumably defends the abstract conception of traditio, and Ulpian’s apparently causal passage D. 12, 1, 18. The author provides an outline and a critique of some recent interpretations of the relationship between the antinomic passages suggesting that any attempts at harmonisation are misguided. Julian’s position seems to reflect his distinctive argumentative ingenuity and ought not to be generalised.

Zbornik znanstvenih razprav / Ljubljana Law Review, 80 (2020), pp. 157 – 192, 2020

For learned jurists of the 16th–18th centuries, Roman praedial servitudes represented a legal-dog... more For learned jurists of the 16th–18th centuries, Roman praedial servitudes represented a legal-dogmatic model for conceptualisation and incorporation of heterogeneous feudal institutions into the categories of the ius commune. The author explains the reasons for a peculiarly wide understanding of praedial servitudes and outlines the issues learned jurists had to overcome while dealing with the harmonisation of Roman law and particular law tradition. An overview of manifestations of servitudes including the legal relations on the common land, legal servitudes, serfdom, banalités, regalia and international servitudes is concluded with their conceptual analysis. The author demonstrates that the content of praedial servitudes in the usus modernus period differed substantially from the notion of the ancient Roman Law as well as of the modern civilistic science.

Books by Vid Žepič

Sodniške insignije v evropskem in slovenskem pravnem izročilu, 2023