History of law and other humanities: views of the legal world across the time (original) (raw)
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The paper is to answer the question what jurisprudence is. Is it still “the science of things divine and human”, as it was wonderfully stated in the Code of Justinian in 534, following Roman law (Roman jurisprudence) and great Roman jurists like Ulpian? Is jurisprudence still “the science of the just and the unjust”, as we read in the Code? I propose to go to Justinian’s Compilation, Book I. Of Persons, I. Justice and Law: Justice is the constant and perpetual wish to render every one his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust. The paper will also examine the historical, theoretical, and axiological foundations of the European legal culture. To understand the present day law and legal profession, it is necessary to go back to the values, theories, and thinkers important for European law from ancient times to the 19th century. The paper not only presents the theoretical and historical issues of the European legal culture but also acquaints the audience with the true foundations of our contemporary legal institutions, and the methods of legal thinking in Europe. My thesis is that our contemporary Western jurisprudence is rotten: we lost metaphysics in law, especially after the time of the Salamanca school of natural law. The concept of virtue based on Thomistic Aristotelianism was essentially redefined by the Northern school of natural law (Grotius, Pufendorf, Wolff etc.). Now axiological consistency of Western law is full of … inconsistency. Something is broken in jurisprudence. Nowadays, in the beginning of the 21st century, for many legal scholars this is a shame or a lack of professionalism to combine law with theology or Christian moral philosophy. However, there are good exceptions (Finnis, Witte, Bankowski). There is an axiological struggle in this science indeed. What jurisprudence is seems a conceptual and academic problem. Say, it is a general theory of law and state. Its practical importance in legal education and political science is remarkable. I analyse relations between law and religion (and morality) in jurisprudence while talking about the condition of the today Western jurisprudence. Furthermore, while going back to the origins of law in Europe, I focus on three roots: Greek philosophy (Aristotle and Plato), Roman law (Ulpian, Cicero, Gaius etc.) and Medieval jurisprudence and theology (St. Thomas Aquinas, Medieval jurists like Accursius, Iacobus, Bartolus, Baldus, and the Salamanca school of natural law in the persons of Suarez, Molina, Lessius etc.). Western law conceptually was rooted in Christianity. Sadly, while answering the question from the paper sub-title, it seems to me that nowadays jurisprudence is more about human things, but almost not about divine things; God does not exist for the legislator and most of the legal scholars. God died, as Nietzsche said. Nowadays also the great idea Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1) is a slogan, since moral philosophy as “a mother of law” (Baldus Commentaria to D. I.I.I.2) seems dubious. The necessity of going back to the three roots and the true origins of jurisprudence, i.e. to the heritage of Areopagus, Colosseum, and Golgotha, is becoming so obvious. This was and is Justinian’s heritage.
Humanity as Core Issue of Law. Post-Postmodern Methodologies in Roman Law
The paper moves from a single but very significant case study, presented by the Roman jurist Ulpian (75 ad ed., D. 44.2.11 pr.). The text offers a good historical example of axiological approach to law as an instrument, even towards itself: face to one of the strongest procedural principle of law (res judicata) and to a circumstance in which the rigorous application of it would produce an unjust result, the jurist points out the necessity to use law as an instrument in order to constantly improve the law itself and realise substantial justice. The case is exemplary from a very wide methodological point of view, in showing the Roman jurisprudence’s approach to the occurrence of reality’s requests and connected legal problems. The jurist goes here through the case, getting to the core and foundation of law and justice: humanity. In so doing, the text also offers, showing the potential of comparative historical approach, a very interesting chance of entering, from a new (although very old) point of view, the contemporary debates between the scholars of general theory of law, matching with the dualism between legal formalism and instrumentalism. The case study shows, in fact, a bright example of a possible way to go through and even supersede this ideological rift, putting together formal respect of fundamental legal principles and opportunity to take into account the real situation’s circumstances. In this way, formal law evolves into real, human law, following the fundamental definition of law as ‘art of the just and equitable’ (D.1.1 pr.). The case study finds its main core issues in pointing out: 1. the difference, in law, between rules (which ‘rule’) and principles (which ‘guide’); 2. the relationship between ‘formal justice’ and ‘substantial justice’; 3. the necessity of putting humanity at the centre of the legal discourse; 4. the possibility (and duty) to transform reality through law, creating opportunities of protection for weacker and forgotten people (in this specific case women). Nowadays, the national law systems face great theoretical challenges in order to provide instruments for a sustainable development of humankind (e.g about environment safeguard, right to food, human rights beyond the national boundaries, commons’ protection, the ideas of ownership): Roman jurisprudence can, as this text shows in an exemplary way, offer an interesting lesson of positive deconstruction of law, through the use of law itself as an instrument, contributing to the growth of a reflective society.
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.
A Cultural History of Law in the Middle Ages. Edited by Emanuele Conte and Laurent Mayali
2019
This is the second volume of a series of six, published by Bloomsbury in 2019. The contributions included in this volume cast new light on the cultural significance of law in the Middle Ages. As it evolved from a combination of religious norms, local customs, secular legislations and Roman jurisprudence, medieval law defined a normative order that was more than the sum of its parts. It promoted new forms of individual and social representation. It fostered the political renewal that heralded the transition from feudalism to the early modern state and contributed to the diffusion of a common legal language with the emergence of the ius commune.
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)
Call for papers. Art, Law and Social Change, a cura di Anna Simone e Alberto Vespaziani
In the last two decades, the languages for describing social change have multiplied, along with attempts to open individual academic disciplines to interdisciplinary insights. The law, as a codified body of knowledge subject to rigid interpretative rules, has also had to confront this multitude of languages. In studying the relationship between the arts, law and social change we seek to map knowledge by making use of such interpretative sources as iconography, literature, theater, music, the visual arts. Beyond the disciplinary processes of functional differentiation in which these studies often end, our starting point is the need to situate the law within the humanities, and simultaneously contaminate the humanities with the legal sciences. We believe that is it essential to recover the educational, sentimental and communicative function of artistic languages in order to check the technical formalism of legal and sociological