The Journal of Legal History The Role of the Judge in the Formulary Procedure The Role of the Judge in the Formulary Procedure (original) (raw)
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The roles of jurists of the Roman law
Dialog Campus Publishing, 2010
The layers of modern law consist of a textual layer, created by decision of legislative bodies and promulgated in an official text; a layer of legal dogmatics, which provides the conceptual system; a layer of supreme judicial law, which brings this abstract body of norms closer to cases and thus largely eliminates the meaningful openness; and a layer of fundamental rights, superimposed in more recent times. These layers of law have evolved over many hundreds of years since the gradual revival of Roman law around 1100, and by the mid-18th century had assumed the form we know today in the European legal systems and the American legal systems that emerged from them. For a fuller understanding, it is necessary to reconstruct the development of the layers of law in the development of Roman law, which served as a model for the development of medieval and modern law. For me as a legal theorist, it is sufficient to analyze the summary works that expertly portray this development, and so I rely primarily on Fritz Schulz's major monograph on the development of Roman jurisprudence, supplemented by Wolfgang Kunkel's work on Roman jurisprudence and the great jurists and Franz Wieacker's analysis of the textual layers of classical Roman law (Schulz 1961, Kunkel 1952, Wiaecker 1960). I supplement these more extensive and detailed analyses of the overall development of Roman law with Detlef Liebs's work on post-classical Roman law and include as background material Peter Stein's study of rules and legal principles in the development of Roman law and a small work by Arthur Schiller on the law of the imperial bureaucracy (Liebs 1964, Stein 1966, Schiller 1953).
Journal of Modern Science, 2022
It is believed that in the post-modern age the legal security and the predictability of judicial decisions have entered a crisis because the principle of the judge’s subjection to the statute is also in crisis. The Roman law could teach us that the legal security and the predictability of judicial outcomes have experienced a pre-modern age where they were not linked to the modern principle of the judge’s subjection to the statute but were instead linked to the principle of unambiguous, clear and precise wording of the legal paradigms which the judge was subjected to in order to deliver his judgment. According to the Roman foundations of the European law, the institutions of the European Union have drawn our attention back to the necessity of unambiguous, clear and precise legal text. The Latin sources analysed here show the use of the formulae («precise, strict, and simple») and not of the statutes as a guarantee of predictability of judgement outcomes and as a control of the sentences of the judges. We may say that the judge in the Roman formulary procedure was subject to the magistrate’s formula and not to the statutes, because the relationship was between the judge and the formula and not between the judge and the statute. In conclusions, the current crisis of the statute should not necessarily lead us to abandon the need to guide the judges’ decisions with clear, precise and unambiguous legal paradigm.
Natural Law and Casuistic Reasoning in Roman Jurisprudence.pdf
“Natural Law and Casuistic Reasoning in Roman Jurisprudence” in Peter Adamson and Christoff Rapp, eds., State and Nature: Essays on Ancient Political Philosophy (Berlin: De Gruyter), 2021
The Roman jurists, 'calculating with concepts,' did not need any natural law." (Christoph Kletzer). Focusing on classical juristic material, this essay argues that natural law was in fact one concept, amongst others, that Roman jurists calculated with. There is no evidence for Roman juristic treatises dedicated to natural law, yet as Levy noted in 1949: "Hundreds of texts are concerned with ius naturale, naturalis ratio, rerum natura and other phrases related to natura or naturalis. It is impossible to find a common denominator." The essay divides into two parts: first, it surveys a series of arguments drawn from those hundreds of juristic texts that relate to natural reason and natural law(s). Second, it analyses the Roman juristic method of "calculating with concepts." The argument throughout is that the common denominator which eluded Levy is the Roman jurists own, highly particular, type of case-methodology.
This paper will investigate the errors that can make the judgment null and void and, therefore, produce the reversal of the res judicata. Res judicata is considered the irrevocable end of a correctly constructed judicial proceeding. We will try to find out what, in the Sixteenth and Seventeenth centuries, gives substance to this assumption in order to better understand the discipline of the miscarriage of justice of the time. We will see what the differences are between final judgment and res judicata; the elements which constitute the authority of the res judicata and the iuris et de iure presumption which gives it foundation; and the judicial errors made in a criminal judgment that are taken into consideration by the jurists. The errors that can be made by the judge while judging are directly proportional to the powers entrusted to the judge itself by the political order within which he operates. The power of judging and the duty to do it according to certain rules converge upon the figure of the judge. The res judicata produces effects precisely because it is the result of the correct interaction between such power and such duty. The power of judging which the political order entrusts to the judge is limited by the fact that he has carried it out within the rules established by the same political order. The widening and narrowing of these limits have repercussions on the irrevocability – or better, on the capacity of not being rescindable – of the res judicata which, in the most extreme hypothesis, could be valid and therefore produce its effects even in the case where the judge operates without respecting the rules . The sources that have been consulted for this paper are essentially of a doctrinal nature and they refer to a period that goes from the end of the Fifteenth to the Seventeenth century. Jurists, that have been taken into consideration, belong to the territories of present-day Germany and central-northern Italy and are known as ius commune jurists.
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.