Abuse of Rights – the Historic Perspective: Reception of Law or Reasonableness and Natural Law (original) (raw)

As in ancient times, the abuse of rights is a noticeable social problem even in contemporary times, as a result of which a response from the legal order is expected. Roman experience tends to show the external theory route. Inevitably, internal theory is only possible in the legal system. However, in the age of decodification, it is not – at least in the enlightenment sense – every legal order which increases the significance of making reference to the experience of Roman law. And it is precisely in the context of the question about the abuse of rights that Roman law enables the trend to be noticed in man, which is more original than conviction and not necessarily rooted permanently in the individual or collective consciousness, while simultaneously being independent of any reception, acquisition or model of conduct. This trend usually appears in extreme cases. It manifests itself in specific reactions to wrongly exercising the rights granted by the law – wrongly more in the social than in the individual meaning. It most clearly manifests a sense of justice, which is part of human nature. A sign of natural law is visible here, because this trend in the method of perceiving reality proves to be a regularity which is, by nature, original with respect to human convictions – rather than just their derivative. Compared with ancient sources, this observation appears to be so important to the question of humanistic universality that the Roman example in this regard is very different from contemporary examples. In the case of the ancient examples mentioned, there is still no mention of the influence of Christianity. Questions of natural law should not necessarily be combined with religious issues, but they should without doubt be combined with moral issues. And this does not contain any ideology. The Roman example is always interesting because the legal solutions used by the Quirites still appear as central pragmatic considerations. And so, Roman private law shows that the ethical element can play an important role and makes itself known in the practice of applying the law. The source of this is a trend which is noticeable in man. It constitutes not only one of many expressions of public awareness, but an important and interesting expression of public awareness arising from common sense, which shapes social relations and reaches as deep as the natural and original sense of justice. To conclude, even if there is no reception of law, it does not mean there are no historic arguments – particularly deriving from Roman law – that are interesting and instructive.