"Bene Comune" e ambiente: una lettura romanistica della enciclica laudatio si'

Author(s): Giovanni Carlo Seazzu / Language(s): Italian Publication Year: 0

In accordance with a legal construction, of feudal origin and dominant today, the universal nature of the collectivity is understandable and understood exclusively as an abstract legal person, and, accordingly, the regime of it's will has to be and is exclusively in hands of smalls number of representatives. Such a construction negates to any concrete collective body the management, in general, of the proper goods and, in particular, of those essential as environment.The hope entrusted (in a manner of highest authority too, with the Encyclical letter “Laudato si’”) to the Roman legal categories of res communes and actio popularis, to invert the logic of the feudal construct, seems to be professed by legal-historical doctrine of the nineteenth century by attribution of such constructs to the Roman law. But this doctrine is out in doubt by those claiming that, on the contrary, the rule of the roman law on the unitary ownership and management of the common goods by, precisely, the same collective understood concretely. In this article, a first, positive confirmation of the verisimilitude of this new claim is being obtained by an examination of the studies dedicated to the structure and the dynamic of homologous private and public collectivities: municipia and collegia.

A SENATUS CONSULTUM ULTIMUM MINT SZÜKSÉGHELYZETI FELHATALMAZÁS CICERO BESZÉDEIBEN

Author(s): Tamás Nótári / Language(s): Hungarian Publication Year: 0

In Cicero’s oeuvre, there are two orations (both from the year 63 BC) when he mentions and analyses the importance of the senatus consultum ultimum. These loci can be found in his oratio Pro Rabirio perduellionis (the speech of defence on behalf of Rabirius accused with perduellio, i.e. having killed the plebeian tribune Saturninus) and his consular orations In Catilinam held against the Catilinarian conjuration. With the senatus consultum ultimum, the senate gave a declaration of a special state of emergency and empowered the magistrate to act without any respect to usual legal boundaries and restrictions only in the interest of the state. In order to throw light on the importance of the senatus consultum ultimum, in this paper, the role of the magistrates and the senate in the Late Republican Rome will be analysed first, the differences between the power of the dictator and the role of the senatus consultum ultumum will be compared, and, finally, the significance of the senatus consultum ultimum in the Roman ius publicum will be explored.

ACTA PILATI, BETWEEN LAW, MORALS, AND RELIGION

Author(s): Marilena Marin / Language(s): English Issue: 1/2021

Starting with the very origin of man’s nature as a base for human rights, we suggest one of the controversial actions of ancient times, as a debate and analysis subject, respectively, Pilat of Pont’s action of „washing his hands” as a gesture of detaching himself judging-wise, and, eventually,sentencing the one whom he believed had wronged the Roman state. In this piece of writing, we will analyze, with reference to morals and religion, Pilat’s role as an official of the Roman state from a judiciary point of view. This role had to do with investing the governor with judging a case and the overall procedure he was to follow in the case of certain important procedures, to send information to the emperor who, at that time, was Tiberius Caesar Augustus. We believe that focusing on this subject may spark interest through the meth- od of analysis that we took up. We do not intend to make an analysis of the rules imposed by the canonic right and we won’t extend the analysis to all roles that Pilat had as an official either. We will limit ourselves to the judiciary aspects of Pilat of Pont’s activity in the context of Jesus’s trial. Knowing them better, we can find their utility and practical applicability in humans’ lives in society, but we can also understand the chosen subject better towards research for the writing here. Regarding the research methodology, we chose the interdisciplinary analysis, focused on empirical research, so that we can then reach conclusions that help us understand the survival of these notions over the centuries, to the present day.

Actio Publiciana and Mancipatio

Author(s): Adolfo Bautista Cremadez / Language(s): English Issue: 2/2021

Mancipatio was the established way to trade res mancipi (slaves, italic soil and big animals), so if these things were delivered by traditio the transmission was invalid. This distinction disappeared before Justinian's compilation, generalizing the traditio as a mechanism for the transmission of all goods. This work discusses the possibility that the mechanisms for protecting the Praetorian owner (especially the actio publiciana) could have determined the disappearance of mancipatio.

Ali Haydar Efendi’nin Mecelle-i Ahkâm-ı Adliyye’ye Yönelttiği Tenkitler

Author(s): Ahmet Çetinkaya / Language(s): Turkish Issue: 3/2021

Majalla al-Aḥkam al-‘Adliyyah, which is the first example of codification based on Islamic law, has been the subject of criticism from different angles in terms of its preparation and content. The main reasons for criticism are following the casuistic method, being limited to the Hanafi sect, and therefore, the regulations on some issues not meeting the needs of the period, and the lack and excesses that do not comply with the content of the civil law. The commentator of the Majalla, ‘Ali Ḥaydar Efendi, also criticized Majalla from different angles. In this study, it was aimed to identify, describe, and classify Ali Ḥaydar Efendi's critics of the Majalla, and -with some exceptions- no evaluation was made about the criticism of the commentator. Ali Ḥaydar Efendi, the author of the most comprehensive and famous commentary of the Majalla, Dureru'l-hukkâm, criticized the Majalla both in terms of law technique and content, justified his criticisms, and offered alternative suggestions regarding the issues he criticized. Although Ali Ḥaydar Efendi criticized an item for only one reason, he criticized some items from more than one point of view. In the article, each of the criticisms of Ali Ḥaydar Efendi on the Majalla’s items is discussed under a separate heading, and the items criticized from more than one point of view are discussed under a separate heading and exemplified as much as possible. His criticisms of the Majalla in terms of law technique are as follows: The statements of the items are prone to making wrong judgments, not of a general nature, the concepts are not used appropriately, both the concepts and the items are not compatible with each other and with the fiqh books, having some missing, unnecessary or incorrect statements in the items, and the lack of records in the statements. Among the criticisms made in terms of content, first of all, the fact that the provision contained in the article is contrary to the ruling in the fiqh books or the view of the sect should be mentioned. Some of the criticisms in terms of content are related to the preferences made while preparing the Majalla. In this context, it has been the subject of criticism that some of the preferred views are not suitable for the needs of the period or the preferred view in the madhhab, conflicting between preferences from time to time, and not making a choice in some controversial issues. The existence of provisions that do not comply with the requirements of the time, and the asl-far' incompatibility is another reason for criticism. In such criticisms, the suitability of the content of the law with the madhhab books in various aspects has been tried to be revealed, and inappropriate aspects have been criticized. However, ‘Ali Ḥaydar Efendi also pointed out that the text of the law should be prepared by making use of the provisions of different madhhabs, since it does not meet the needs of the time, although it is in accordance with the provisions of the madhhab. ‘Ali Ḥaydar Efendi also criticized the Majalla in terms of missing some issues or not being regulated sufficiently, and included provisions regarding the qarḍ contract and crimes against animals, which were not dealt with even though they should have been included in the Majalla. However, he never touched upon the subjects of consumption and ribā, which were not dealt with in the Majalla, although they should have been. ‘Ali Ḥaydar Efendi said that there is a deficiency in the items dealing with subjects such as luqata and hacr, since some conditions regarding these issues are not included. ‘Ali Ḥaydar Efendi also criticizes the Majalla in terms of the contradiction between the provisions contained in the items; the lack of unity in language, style and terminology among the items; and unnecessary repetitions both between the items and within the items. ‘Ali Ḥaydar Efendi, who did not make any criticism about the repetitions due to the fact that the Majalla was prepared with the casuistic method, justified or criticized the other repetitions and offered suggestions to avoid such repetitions. Also, according to him, there are deliberate repetitions in the Majalla. In addition, he also criticized the Majalla from a systematic point of view, such as the incompatibility of the title and content, the arrangement of similar subjects in different chapters/items/paragraphs, or the handling of different subjects in the same chapter/item/paragraph. Another criticism of ‘Ali Ḥaydar Efendi about the Majalla is about definitions. He criticizes the definitions made as not being collectively exhaustive, mutually exclusive and not being in the definition technique such as the tautology, but also on the grounds that it is not comprehensive, contrary to the method followed in other definitions made in the Majalla, and not being included in the fiqh books.

Aspecte teoretice şi practice în delimitarea necorespunderii profesionale de răspunderea disciplinară

Author(s): Ioana Cristina Neagoe‑Diniţă / Language(s): Romanian Issue: 2/2022

The distinction between indiscipline and professional unfit has long preoccupied the older and newer Romanian legal doctrine and practice, which has come a long way to the clarity we enjoy today. For the Romanian legal system, this clarity was also achieved by clearly delimiting by legislation the grounds on the basis of which the employer may order disciplinary dismissal, respectively dismissal for professional unfit. Some other pragmatic legal systems, this interest in delimiting this legal basis has not been so strong, as they have relied on pragmatically resolving the shortcomings caused by the dysfunctional performance of employees without looking for deep‑rooted explanation referring to psycho‑emotional, cognitive or attitudinal aspects and conduct of employees who have committed acts that have affected the activity of the employer.

BLACK SEA – A SHOWCASE OF LEGAL AND MORAL SYMBOLS DURING ROMAN ANTIQUITY

Author(s): Valerius M. Ciucă / Language(s): English Issue: 2/2021

The science of law, so jus-naturalistic and metaphysical as such, represents by definition a collection of metaphors and symbols with a moral and especially a juridical signification. The semiotics of law constitutes avant la lettre a field of excellency in the mentality of many Roman jurists, jurisprudents (philosophers of law), judges, and many other humanists (as Cicero, Seneca or Ulpian, etc., and a plethora of writers and poets). In this respect, we are looking for the Roman manner to find symbols of human connotations starting with the metaphor Mar Nero, after the Greek terms, Pontus Axeinos & Pontus Euxeinos.

BONA FIDES IN ROMAN CIVIL PROCEDURE

Author(s): Milka Rakočević / Language(s): English Issue: 1/2021

Although not always distinguished as an explicit procedural phenomenon, abusus iuris doctrine has a long history and is familiar to all periods of historical development of civil procedure. As one of the basic principles of contemporary civil procedure, if analysed historically, it can be noted that the prohibition of abuse of procedural rights is neither modern nor contemporary in the legal meaning of those terms, nor in the historical retrospective loses the importance that characterize it in the modern civil procedure. Within the paper, the focus is set on the administration of justice in ancient Rome with particular interest on the institute of abuse of procedural rights. The paper discusses the beginnings and development of organized methods of legal protection in Roman civil procedure with the aim to determine its basic characteristic through different stages of its development and to analyse the frivolous behaviour of the parties before the tribunal and procedural mechanisms for supressing vexatious litigation. The historical retrospective is covering different periods of development of the Roman litigation. The main drive for analysis of the historical dimension of civil procedure in ancient Rome is to analyse the genesis and evolution of the principle of bona fides in Roman civil procedure.

CONTRAHERE OBLIGATIONEM В КЛАСИЧЕСКОТО РИМСКО ПРАВО

Author(s): Adolfo Wegmann Stockebrand / Language(s): Bulgarian Issue: 1/2021

This paper intends to demonstrate that it is a mistake to equate the Latin syntagm contrahere obligationem to the modern idea of concluding a contract, phenomenon that entails the formation of a false retrospective construction due to the anachronistic use of a modern dogmatic concept applied to the Roman legal experience. In classical Roman law, the phrase contrahere obligationem referred to the lawful and specific activity carried out by an agent in order to give rise to an obligation, meaning, regarding him, the causa obligationum.

DATIO IN SOLUTUM NECESSARIA В РИМСКОТО ПРАВО. РАЗВИТИЕ И НАСТОЯЩЕ – СРАВНИЕЛЕН АНАЛИЗ

Author(s): Verónica Daniela Díaz Sazo / Language(s): Bulgarian Issue: 1/2021

This research aims to analyze the figure of the datio in solutum necessaria from its origins to the present. All this, from the terminological and practical origin of the datio in solutum, but focusing specifically on the datio in solutum necessaria. The legal figure of datio in solutum necessaria finds its origin, according to the majority doctrine, after Justinian, so it is intended to systematize its evolution until today. In modern times, the datio in solutum necessaria is not estipulated in most legal systems, with voluntary payment being the option regulated by most of the current Civil Codes. However, it is intended to demonstrate that there are legal systems that remain faithful to Justinian Roman law when it comes to providing the datio in solutum necessaria in an express manner in their legal systems.

Defence Right of the Accused and the Evidence from Slave’s Testimony in the Roman Criminal Procedure

Author(s): Andrzej Chmiel / Language(s): English Issue: 5/2021

This article presents the question of the accused’s right to defend himself in the light of the prohibition of interrogation of slaves in favour of their masters (quaestio de servis pro domino) expressed both in non-legal texts and in the writings of the jurists of the classical period, and in the imperial constitutions. It has been shown in the paper that the prohibition constituted a quite interesting procedural solution, which, in fact, did not entirely exclude the right of the accused owner to defend himself during the criminal trial. The testimony of the slave his master demanded to be interrogated as part of broadly understood iudicium publicum was therefore regarded as subsidiary (auxiliary) evidence. The admissibility of the evidence from the interrogation of a slave pro domino was within the discretionary power of the judge, the scope of which, however, was in this case statutorily defined. Seemingly restrictive procedural solutions concerning the admissibility of slave testimony introduced in criminal cases in Roman law in various historical periods did not contradict the main procedural principles developed by the Quirites over the centuries and known to this day.

Dreptul între formă, conţinut şi discurs politic. Despre o receptare ştiinţifică a dreptului roman în România.

Author(s): Tudor Avrigeanu / Language(s): Romanian Issue: 3/2019

Der vorliegende Beitrag versucht, eine Erklärung für das Fehlen der sog. Wissenschaftlichen Rezeptio des römischen Rechts aus der rumänischen Rechtsgeschichte und Rechtswissenschaft. Dafür wird die Unterscheidung zwischem Form und Inhalt des Rechts in verschiedenen Zusammenhängenn erörtet, und schließlich die strukturelle Ähnlichkeit zwischen der Schutzfunktion der rechtshistorischen Lehre von der wissenschaftlichen Rezeption des römischen Rechts in der Zei des Nationalsozialismus und der Aufbaufunktion der rechtswissenschaftlichen Lehre von den sog. Konstanten des Rechts in Bezug auf die Konstruktion freiheitlicher Rechtszustände unter dafür günstigen politischen Bedingungen während der kommunistischen Zeit.

Einleitende Bemerkungen zu den Beiträgen der Referentinnen und Referenten des XV. Jahrestreffens der Jungen Romanisten

Author(s): Matthias Ehmer,Francesco Verrico / Language(s): German Issue: 1/2022

On September 13th and 14th 2021 the University of Würzburg (Germany) hosted the XVth Young Scientists Meeting on Roman Law. The following introduction sums up themes and presentations of the Meeting. A list of useful databases concerning the research on Roman Law, which was developed during our workshop, is also attached. After the introductory remarks three speakers present their essays, based on their presentation at the Meeting.

EMPHYTEUSEOS CONTRACTUS

Author(s): Malina Novkirishka- Stoyanova / Language(s): Bulgarian Issue: 1/2021

The article presents the emphyteuseos contractus and the legal framework of emphyteusis in the Justinian Code (CJ 4.66. De emphyteutico iure) and in the Justinian Institutions (IJ. 3.24.3). It is the founding title of the emphyteusis as a result of a long evolution of this agrarian practice, but also the basis for the vitality of the emphyteusis in the Middle Ages and its application today.

Examen de drept comparat asupra formării familiei de drept romano-germanice

Author(s): Sonia Drăghici / Language(s): Romanian Issue: 03/2022

The construction of the Romano-Germanic family law system is an interesting phenomena build around Roman law, which became a principle or a norm of thought for the European juridical thinking, and also around the law of Germanic people who colored the juridical European life and determined the process of codification. Thus, the article addresses the interesting issue of the combination process between Roman law with the law of the Germanic people, indispensable for the understanding of the Romano-Germanic family law system and for underlying the differences between this system and the common-law system. This is an important process, considering that a considerable part of the juridical systems of the world are founded around the family law system.

FORUM ROMANUM - РИМСКА ДРЖАВА, ПРАВО, РЕЛИГИЈА И МИТОВИ

Author(s): Dragana Knežić-Popović / Language(s): Serbian Issue: 1/2006

GENERAL CONSIDERATIONS REGARDING THE HISTORIC EVOLUTION OF ROMAN LAW

Author(s): Cristinel Ioan Murzea / Language(s): English Issue: Supliment1/2017

The historic evolution or Roman law was in a determination relation with the factors which configure law, especially the social-political ones or the economical ones, but also those which pertain to the natural background in which Roman society evolved, thus passing from the citadel-state to the “polis” type of state and then to the universal state - the Roman empire - which would later become a model of political, military and legal organization for the entire antic world. Roman law was created in the history of the eleven centuries of existence or the Roman state which passed several stages of development, excelling in the classical age when, given the great reforms which are performed under the direct influence of the praetorian, the main legal magister, certain principles and legal institutions are created which proved to be viable across the centuries to follow, thus directly influencing the subsequent legislative activity in the modern and contemporary age in the European space.

Historical-Legal Aspects of the Influence of the Canons in the Treatment of Servitudes in Kosovo

Author(s): Berat Aqifi,Ardian Emini / Language(s): English Issue: 1/2021

In this paper we will analyze the institute of law services in a broader historical-legal point of view, seeing it closely related to the principles of law in general, and Albanian customary law based on the Canons that acted in the face of a very large influence of the Roman law of that time, of the Byzantine Empire (“Nomos Georgikos”), of the laws of Ottoman law (“Sharia law”), which exercised their activity, and which had for consequently their influence in the areas where Albanians lived. Given the importance of the servitude as an integral part of the right to property, the circumstances in which it was created, the way it evolved since ancient times influenced by Roman law and the Albanian Canons, where you learn to important also in our law in particular, although it was not created by the right of ownership, it became an important derivative of it. From this paper we will try to give some answers due to some ambiguities that have influenced to date in the historical legal aspect in the right of ownership in our country, regarding the shortcomings of the legal framework of real rights on foreign items to provide solutions to numerous cases and problems that arise in practice from their implementation influenced by the Albanian customary law transferred through the Canons. Of particular importance are the legal norms in the civil field, especially in the field of property rights and inheritance created in certain historical and geographical circumstances and conditions, where this right acted, also influenced the preservation of some features and elements of national nature. , in the face of the risk of assimilation and the numerous influence of foreign law. Of course, special attention is paid to the “Canons”, as part of a special extension and value of Albanian customary law.

I PRIVILEGI IN SEDE FALLIMENTARI. RIFERIMENTO SPECIFICO QUIS NAVIS FABRICANDAE VEL EMENDAE VEL ARMANDAE VEL INSTRUENDAE CAUSA

Author(s): Maria del Pilar Perez Alvarez / Language(s): Italian Issue: 2/2021

Preferential credits are those credits that guarantee a preferential satisfaction of the creditor with respect to unsecured and ordinary creditors. This preference is established in relation to the competition of creditors and is per se a benefit granted by the legal system to certain credits, which substantially coincide with those present in most European legal systems. In the Digest, for example, reference is made to the privillegium in favor of creditors who have administered their money to build, equip or purchase a ship. The present study aims to analyze its origins, regulation and graduation with respect to other preferential credits.

IGNIS, INCENDIUM, FORTUITUS CASUS – D. 19, 2, 9, 3 I OPASNOST ŠTETE OD POŽARA KOD LOCATIO FUNDI

Author(s): Tomislav Karlović / Language(s): Croatian Issue: 3-4/2021

The paper discusses the issues of the contents and the significance of Ulpian’s text D. 19, 2, 9, 3 within a wider context of allocation of risk in lease agreements and the place of fire, conflagration (incendium) among the different forms of vis maior in Roman legal sources. Considering the problem of subsequent impossibility of performance in locatio conductio (rei), D. 19, 2, 9, 3 stands out as the one mentioning periculum in relation to locatio fundi, however, it is burdened by different interpretations. The analysis in the article starts with the D. 19, 2, 9, 3 and then continues setting it in the context of other related texts in which the Roman jurists dealt with the problem of fire in lease agreements. The conclusion is drawn on the probable changes in the text as well as on the function of the term fortuitus casus in the line of the texts dealing with fire. It emphasizes the connection between fire (ignis) and conflagration (incendium) marked by the words fortuitus casus, which would show a differentiated approach to incendium as a form and an example of vis maior.