LIMITELE CAPACITĂȚII JURIDICE ÎN DREPTUL ROMAN ȘI ÎN DREPTUL CIVIL ACTUAL: ÎNTRE RESTRICȚIE ȘI PROTECȚIA INDIVIDULUI
LIMITS OF LEGAL CAPACITY IN ROMAN LAW AND CURRENT CIVIL LAW: BETWEEN RESTRICTION AND PROTECTION OF THE INDIVIDUAL

Summary/Abstract: Abstract (en): This paper offers a comparative account of the limits of legal capacity in two normative settings: Roman law and contemporary civil law. In Roman law, the tripartite scheme of status libertatis, civitatis, and familiae structured membership in the legal order and explains why certain groups (slaves, non-citizens, persons alieni iuris) faced exclusion or restricted access to the ius civile. In modern systems, the starting point is reversed: equality before the law and universal legal personality, complemented by calibrated protective measures. The analysis traces the shift from „incapacity as exclusion” to „incapacity as protection,” with a focus on CRPD Article 12 (equal recognition before the law and supported decision-making), the ECtHR’s case-law on extensive deprivation of capacity and long-term institutionalisation, and Romania’s 2022 reform (Law No. 140/2022 introducing assistance for concluding acts, judicial counseling, special guardianship, and advance care mandates). The paper highlights technical continuities (age thresholds; targeted incapacities to prevent conflicts of interest) and a break in justification: measures must be individualised, proportionate and reviewable, aiming to safeguard dignity and autonomy.

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