Roman Law Procedure and Current Oriental Canon Law Procedure: a Brief Survey about the libellum litis introductorium (original) (raw)
Messages from Antiquity. Roman Law and Current Legal Debates. Introduction
„Messages from Antiquity“, 2019
This book is a compilation of papers presented at the conference held in February 2016 at Kyushu University (Fukuoka, Japan) under the title "Messages from the Antiquity: How can Roman law contribute to current debates in law?" For the occasion, Prof. Mariko Igimi invited Roman law researchers from around the world to discuss the importance of Roman law with the students of the LL.M. in International Economic and Business Law. Tue aim was to identify and build links between Roman and modern law through such interaction. We came to understand that Roman law is significant on the one hand because it provides the historical basis of civil law in continental Europe and other civil law jurisdictions, induding Japan. On the other hand, the texts of Roman law also provide us with a space to reflect on "new" issues of legal politics. Therefore, they help to analyse legal problems and might provide support for the development of solutions. Tue unique experience of having such a diverse group of students from all over the world, induding common law jurisdictions such as UK and New Zealand participating in the discussion, served as the main inspiration to open a gateway for a larger group of readers to different ideas and questions on the persisting relevance of Roman law, in the hope that they will discover "new" elements in "ancient" law. Hence, this book is for students, legal practitioners and academics who wish to widen their horizons with a different perspective on Roman law. To the European reader, it might be interesting to find the ongoing importance of the Roman legacy in Japanese law, whereas the almost unbroken continuity of the European legal tradition might be of special interest to Asian readers. By any account, the diversity and scope of the different artides in this book will show once again that the study of Roman law from very different perspectives can be rewarding, valuable and informative. Tue approach we have chosen (also to be seen in the introduction) was an "experiment" that required courage and openness on the part of all who were involved. We would, therefore, like to thank all of the contributors, who were ready to partake in this unusual dialogue between modern legal problems and legal culture from the antiquity. Special thanks are given to the students and the staff of the International Programs in Law at Kyushu University, 2015-2016, who made the conference a great success as well as to all those who were instrumental in the editorial work for the articles gathered here, namely the assistants of the chair of Roman law, private and comparative law at the University of Zurich: Franca Eckstein, Ulrike Babusiaux, Zurich Tue still predominant view characterises the Roman legal order as an uncoordinated mass of legal sources accumulated in the historical development but without clear hierarchy among them. 1 From this point of view, the Roman legal reasoning seems to differ profoundly from modern legal reasoning. Indeed, at least in the civil law countries since the age of codifications, private law has been organised in codes and statutes, whose application and interpretation are said to follow a strict methodological framework. However, the emergence of an autonomous European legal order that influences and competes with the national private law of the Member States has brought a change to this overly idyllic picture of legal positivism. Tue old question in Roman law of how to coordinate different legal sources without abstract hierarchy has, therefore, become an important topic in modern legal methodology as well. With this in mind, it is interesting to reconsider the question of coordination of legal sources in the Roman Empire and in contemporary private law influenced by the European Union. Tue first part will try to explain the Roman legal order and the techniques known to the Roman jurists as to coordinate different legal sources (II), whereas the second part will give abrief introduction into the methodological implications of the European efforts oflegal harmonisation for the application of private law in its Member States (III), before it turns to a comparison of the problems that have occurred in both historical examples, which will serve to verbalise a "message from antiquity" (IV).
More than thirty years ago, Robert Somerville wrote an essay that dealt with one of the many puzzles facing scholars when they confront Gratian's Decretum.1 He pointed out that although Gratian included many canons from the Second Lateran Council in the last version of his Decretum, he did not include canon nine, Prava autem consuetudo. He wondered why. The canon's content was strange. Pope Innocent II had promulgated a prohibition forbidding monks and canons regular to study Roman law. The canon also barred them from representing litigants in lawsuits as patroni.2 It declared that those monks who used their glorious voices to participate in the clamor of the courtroom neglected their liturgical songs and prayer because of greed. Instead, they argued cases using a thicket of legal citations that resulted in confusing the just with the unjust and divine law with impiety. This conciliar admonishment was hardly a positive view of an advocate's job, whether a monk, canon regular, or neither.3
The chapter offers an historical overview of Roman law as an object of legal historical research. The forms of contemporary research on Roman law are more diverse than they have ever been. This is true regarding its varied national traditions, in each of which distinct historical and linguistic conditions have obtained. It is likewise true regarding the disciplinary location of research, and also at the level of method. In long historical perspective, this situation could not easily have been foreseen. From late medieval to early modern Europe, the prestige of Roman law had allowed it to serve as an important source of doctrine in analogical argument. Although much anachronism followed in consequence, this also meant that readers of Roman law brought a remarkable range of concerns to their practice. By the late 19th century, however, the historical study of Roman law had been reduced nearly everywhere to the narrowest form of doctrinal study. In many places, this resulted from foundations laid for the study of Roman legal science in Germany, a development whose politics resemble those obtaining elsewhere when positive law is advanced as the truest form of law. In the Anglophone world, significant pressure in this direction arose from a tradition of comparative study between the common law and civil law, which often demanded that the civil law be understood ex negativo in light of the common law's peculiar self-regard. And everywhere there was the fateful decision to locate the academic study of Roman law in law schools. Law school is where Roman law went to die. The recent efflorescence of Roman law owes its origins to a number of related factors. Many of these are shared with legal history writ large: the remarkable influence of feminism in one generation, or new institutional economics, have impelled research in Roman law, too. Some developments were accidental: the interest of historical sociologists like Fustel de Coulanges and Henry Sumner Maine generated conversations with visible echoes today. Similarly, the fact that Roman legal texts are among our oldest evidences of Latin made legal language a special focus of historical linguistics, and this in turn produced a school of legal scholarship that has employed linguistic tools to seek the ur-forms of Roman legal concepts. Some developments were endogenous to the study of antiquity: the on-going discovery of documentary texts from the ancient world yields every year new legal texts, with the result that varied evidence for law in action—including, significantly, law in action in colonial contexts—exists at the forefront of historical research. Finally, unsurprisingly, the major development has been a surge of interest in law among scholars located in Classics and History departments, participating in the currents in law & society and law & literature scholarship that have swept the academy over the last two generations. History is not destiny, of course. Significant areas of research are only now opening to view (or becoming active once again, with new and interesting tools). Because the remains of Roman law transmitted by textual traditions were overwhelmingly concerned with private law, public law has rarely received sophisticated attention. The publication of new evidence over the last century should make public law an area of vital growth in the future. The comparative study of Roman law, not least with rabbinic law, has long had a few sophisticated practitioners. The potential of the field is enormous, and hopefully the rise of interdisciplinary degree programs will foster growth in this area. Finally, Roman legal scholarship from antiquity to the twentieth century should itself be subjected to critical analysis, a process that has begun and will hopefully accelerate.
The Varieties of Ancient Legal History Today
The article surveys, contextualizes and explicates the arguments of the eight papers featured in the forum on " The New Ancient Legal History " in 3:1 Critical Analysis of Law (2016) (http://cal.library.utoronto.ca/index.php/cal/issue/view/1743). Please do seek out the journal and the wonderful papers described in this piece.
Reflections on the Roman legal culture
Rome, just like other states of the ancient world, has stated its supremacy by warlike conquests, but also by perfecting its institutions and even by the use of diplomacy. Of all legal systems of the ancient worlds, that of Rome seems by far the most interesting and influential for the latter development of law. This character is due, primarily, to the practical spirit of the Romans and their tremendous capacity to assimilate and adapt cultural elements and institutions from other legal systems. We should also consider the giant leap that the Roman civilization has made, from the farthest antiquity, to the creation of institutions and concepts, principles that would survive the Roman Empire and decisively contribute to the construction of modern law. There are two characteristics that can best describe the specificity of the legal Roman culture: constructivism and conservatism. Keywords: legal history, Roman legal culture, characteristics
Roman Jurists and the Empire: History and Interpretation
Jurists and Legal Science in the History of Roman Law, 2021
page 4. (III): reaching the textual layer of classical jurists 5. The edition of Ulpian's De officio proconsulis: purpose and method 6. D. 48.18.1.23: mechanical errors and glosses 7. D. 48.18.1 pr.-4: error by haplography 8. D. 1.16.6pr.-2: mechanical errors and intentional alterations 9. Coll. 3.3.1 and D. 1.6.2: dual tradition and emendation 10. Paratext 11. Juristic books as 'Literature' 11. The Code System. Reorganizing Roman Law and Legal Literature in the Late Antique Period (translated by Carole Gustely Cürten) Detlef Liebs 1. The digest system 2. Pseudo-Paul's Sententiae 3. Codex Gregorianus 4. Codex Hermogenianus 5. Hermogenian's Iuris epitomae 6. Pseudo-Ulpian's Opiniones 7. Codex Theodosianus 8. Codex Iustinianus 9. Justinian's Digesta 10.
The Foundations of Roman Legal Culture: Ius, Lex, and Legal Certainty
This paper, which (in shortened form) was originally delivered at a conference in Bologna in 2013 and in revised form as the SCS lecture at the University of Pennsylvania in 2015, attempts to present my own views as the development of Roman legal culture during the early Empire. The paper still needs some work, particularly as to "ius quo utimur," and the bibliography also needs updating. Comments are welcomed, in the meantime.