Roman Legal Tradition as an Identity-Factor towards a New Europe: Five Pillars for the Future? (original) (raw)
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The essay arises from a question resumable in these words: can Roman Legal Tradition, as for private law, represent an identity factor for a (old and new) Europe? The target proposed in the general title "new Europe-old values" intends to disclose the opportunity to consider the Roman tradition of private law as a general value identifying a new Europe, built on a minimum core of principles-persona, dominium, obligation, contract and inheritance-composing the whole European private law tradition. The analysis starts from the original idea of ius civile as created in Roman law: a scientia iuris, a law of/for the cives, the ius of the civitas. In the conceptual alphabet written by Roman jurists, it is possible to identify the genetic stage of the essential substance of European culture of private law.
Roman Law and European Legal Culture (eds. A. Dębiński, M.Jońca)
1. Antoni Dębiński: Introduction to the subject of the conference: the role and significance of Roman law in the legal history of Europe 2. Tomasz Giaro: Roman Law always dies with a codification 3: Mychajło Bajmuratow From Roman municypia to modern local government 4: Paul du Plessis The development of legal doctrine in the ius commune: a case study 5: Wołodymyr Kossak The reception of Roman law regulations on mortgage in the legislation of Ukraine 6: Michal Skreipek Roman roots of contract of bailment in Czech law 7: Jewhen Charytonow Roman law reception in contemporary Ukrainian civil law 8: Wojciech Dajczak The civilian tradition and the modern debate on the rules of private law. Remarks against the factors of unjustified enrichment 9: Marek Kurylowicz Roman law as a universal ethical metaphor (on the example of Louis Aragon and Mieczyslaw Jastrun)
The aim of this paper is to analyse recent (2005-2015) examples of explicit references to Roman law in the udgments of the Court of Justice of the European Union and in the opinions of the Advocates General. The paper focuses only on explicit references to Roman law, i.e. those which openly refer to Roman law, either by using the term ‘Roman law’ or by indicating a specific reference to a Roman legal source, e.g. the Corpus Iuris Civilis or the Gai Institutiones. The study found that only 17 examples of such explicit references can be found during the period under scrutiny. A closer analysis of those examples shows that, firstly, an explicit engagement with Roman legal sources is a relatively rare phenomenon in the case-law of the CJEU; secondly, that such examples are mainly found in the opinions of Advocates General; thirdly, that the role played by explicit references to Roman law can be threefold. The qualitative analysis showed that out of the 17 explicit references to Roman law, in six cases Roman law did actually play a certain role in the legal reasoning. In nine further cases in which an explicit reference was made to Roman law, the reference did not serve any clearly identifiable purpose in the process of interpretation, but rather served to indicate the historical background. Finally, in two cases Roman law was mentioned incidentally, without the aim of using it for purposes of interpretation of an EU legal text nor the aim of giving a broader historical perspective.
The Revival of Roman Law and the European Legal Tradition
Emory Legal Studies Research Paper, 2018
From the eleventh century onward, Justinian’s Roman law permeated all European legal systems to different degrees and at different times. The development of Roman law in Europe was not uniform. It followed different courses, had different emphases, and took on different details in each of the major European countries. The fusion of Roman law, canon law, and feudal law produced the ius commune, a common legal system in Europe in force until the era of national codifications. At the end of the sixteenth century, almost all of continental Europe was ruled by ius commune, with significant local variants (ius proprium), and a body of common legal literature. Roman law infused both Catholic Europe and the Protestant culture of Northern Europe. Around 1700, Roman law was used to identify the basic moral principles of natural law and the law of nations. Around 1800, Roman law influenced the French Civil Code and many others in the so-called age of codification. With the German Civil Code (BGB) coming into force in 1900, Roman law lost its direct applicability in European legal practice. Yet the Roman law tradition itself has survived: civil law systems have been so influenced by Roman law that legal interpretation remains incomplete if it does not take into consideration Roman legal sources. In our own day, the study of Roman law has educational purposes and may prove instrumental in the development of a new global law.
Ius gentium: The Metamorphoses of a Legal Concept (Ancient Rome to Early Modern Europe)
in: Empire and Legal Thought. Ideas and Institutions from Antiquity to Modernity, ed. Edward Canavagh, Brill/Nijhoff [Studies in the History of International Law], Leiden/Boston, 2020
This chapter outlines a history of the concept of ius gentium. It is intended to serve as a contribution to the intellectual history of international law, from Late Antiquity to Early Modern Times. The historical role played by the concept in the framing of international law is not easy to evaluate, as the oldest traces of Roman ‘public international law’, in the sense of law regulating relations between polities, are actually found within ius fetiale. It is, in fact, difficult to arrive at a clear understanding of ius gentium in the history of Ancient and Medieval legal thought, due to a semantic stratification dating back to Roman Antiquity: on the one hand, a fundamental ambiguity exists in the relationship between ius naturale and ius gentium (as in Gaius’ definition, Dig. 1.1.9, possibly under Ciceronian influence) – on the other, the latter, first classified as a branch of the ius privatum (Ulpian, Dig. 1.1.1.4), was later understood as including public law institutes (Hermogenian, Dig. 1.1.5) and even institutes mainly relating to foreign relations (Isidore of Seville, Etymologiae V.6 = Decretum c. 9, d. 1). The simple juxtaposition of these definitions within Justinian’s compilation and Gratian’s Decretum raised several theoretical issues for Medieval jurists, and generated a significant scholarly debate. Firstly, following Dig. 1.1.4 and Dig. 1.1.5, glossators argued that ius naturale and ius gentium – not, as would be claimed by later jurists, Roman law as a whole – formed the ius commune. Secondly, commentaries on Dig. 1.1.5 analysed the various legal institutes listed within the passage, focusing particularly on dominium and obligations. Thirdly, both jurists and theologians elaborated extensively upon the connections between ius gentium and ius naturale: they first drew a distinction between ius naturale primaevum and secundarium, and then reformulated this distinction in such a way that ius gentium itself was split into ius gentium primaevum and secundarium. Many words were to be expended on this distinction until well into Early Modern Times, in the course of a discussion which recent scholarship has studied in depth. This chapter, however, will focus less on this doctrinal debate during the the sixteenth and seventeenth centuries than on the transformation undergone by ius gentium as it developed into a ius inter gentes specifically regulating relations between political communities. Special attention will be paid to diplomatic theory, which has proven to be a particularly interesting field within which to fully evaluate the slow emergence of the state as the only legitimate subject of international law.
The Relevance of Roman Law: A Look at its Roles and Ideologies
The paper examines legal historians’ discourses concerning the interpretation of Roman legal sources. It does so by analysing two examples of scholarly debates: one on the use of Roman law as an atemporal legal doctrine, and one in which Roman law appears as a historical manifestation of natural law. The focus is on the different uses of the concept of ‘ideology’ and the possible roles of Roman law in legal education. It is argued that the concept of identity can meaningfully contribute to our understanding of these debates as well as to the study of Roman law in general.
Journal of Security and Sustainability Issues , 2023
This study shall present the consequences of the paradigm shift in thinking about law that took place in Ancient Rome (primarily, but not exclusively, in the early republic). It will present what distinguished the Roman concept of law from the concept of law present in other ancient laws, and what is still a living heritage of Roman thought, even if we do not realize it on a daily basis. Roman law will be compared with other laws of the European cultural circle, and therefore, apart from ancient Greece, the so-called Eastern despotias and the state (states) of the Jews. However, it is more about ideas than specific solutions. Therefore, in the comparative material will be also included the Muslim law, although it was created after the promulgation of the Justinian Code, considered the final stage in the formation of ancient Roman law. The Muslim law is however-in a sense-an heir of Middle Eastern legislation and expresses an alternative to Roman way of thinking about law. The aim is to show not only what distinguishes Roman law from the laws that precede it or its contemporaries, but what distinguishes Roman law from other possible ways of looking at laws in general. As a research hypothesis is presented the statement that the fundamental for the development of European legal culture were not so much specific Roman normative solutions, but a change in the paradigm of thinking about law: its secularization, understood as a break with divine origin or the sanctioning of law, and its professionalization, understood as the development of a specific category professional people dealing with the analysis and interpretation of law. At the end it is presented an open question why the secularization of the law happened only in Rome and why it ever happened there although in all other analyzed legal systems the connection between law and religion was never surpassed which this did not prevent the formation of a precise and sublime law, as was the case of the Islamic world.
Fara Nasti and Aldo Schiavone, ed., Jurists and Legal Science in the History of Roman Law, 2021
The paper studies the history of Roman law in the United States along two lines: (i) the citation and influence of Roman law and the Roman law tradition in the production of American law; and (ii) the scientific study of Roman law as an academic project (whether dogmatic or socio-historical), among professors of law and history. This paper represents an English-language publication of a volume that first appeared in Italian in 2018.
The Germ of the Conception of Legal Person in Roman Law
2021
The history of commercial associations takes us back to the oldest periods of human history. The notion, that human beings could cooperate, amass assets and thereby conduct their business activities, was present even among the very earliest of societies. Simultaneously, there was, in reality, no theoretical underpinning for such associations, nor aნ established conception of legal entity. Roman law too, in spite of its inarguable complexity and progressive institutions, did not recognize the notion of legal person, even if during the multiple centuries of its existence it did come close to it. Universitas and societas publicanorum are particularly important institutions. The former is interesting as the pinnacle of Roman legal ruminations on associations and the latter as a large-scale entity, which several modern authors even consider to be a precursor to a modern joint-stock company. Aside from aforementioned two entities, other asociations also existed, review of which as well as...
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