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The state operates through its legal order. It is the legal order that reflects the nature of each and every state. In this regard, the nature of the state and its authorities in Serbia during the Osmanli reign were the reflection of the then existing laws and legal order. If one accepts this assumption, then we also have to admit that in its nature, the Osmanli state on Serbian soil at that time had the basic goal to realize the Islamic doctrine. All the legal acts passed by the Istanbul administration to ensure normal functioning of this state had the Islamic character. As most of those acts had been created long before the birth of the Osmanli state, they cannot be called Osmanli: these acts were not Osmanli by their origin or their essence. It is especially important to stress out that the intention behind them was not to maintain the Turkish national idea, as it was suggested by much of the historical synthesis concerning this period, but to secure the triumph of Islam. Therefore, the best name for the laws and regulations promulgated by the Istanbul administration during the Osmanli reign in Serbia would be the Islamic-Osmanli law. It should be called Islamic, because the largest part of this law is older than the Osmanli state, and its main goal was to secure the triumph of Islam. It should be called Osmanli, because it was implemented by the Osmanli dynasty at the territories governed by it.
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This report aims to present a brief overview of the historical and political context of the legal reform, which took place after the establishment of the People’s Republic of China. It offers a short comparison between the provisions of the Constitution from 1954 and the Constitution from 1975 in an attempt to illustrate the consequences from the historical events, which serve as a base for the fundamental shift in the legal principles shaping their contents.
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The medieval prisons are part of the Islamic governing system as in the Near East as in the Magreb. The sources about their organization and working methods are rare and straggling. Whatever, medieval Islamic prisons deserve an attention because they are connected with the general institutional environment in the Islamic lands. This article surveys the Islamic prisons in Sicily in the period 9th-11th century. It begins with a review of the emergence of the first Islamic prisons. This information serves as both forming initial impressions and a basis of the subsequent analysis. An important contribution of the article is the collected information from different by language, type and time historical sources. Their careful readings, coupled with a compare analysis, allow us to draw conclusions about the characteristics and location of the medieval Sicilian prisons. Comparison with the prisons in the other Islamic lands over the same historical period shows us common features. This makes it possible to conclude that the penal institutions on the island follow and work on a well-established model.
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The concept of land ownership in Serbia was subject to radical changes in the 1830s. By that time, the ownership of land had been fundamentally governed by the Ottoman feudal laws, which were generally characterized by the fiction of God as the supreme landowner and the inherent right of the Muslim community to enjoy the use of land (which was considered to be the collective property of the Ottoman state). The predominant type of estates in the Belgrade Pashaluk were the estates of military feudal lords; these estates were awarded ad personam to the Ottoman elite soldiers (spahi) in exchange for their military services. The spahis were not the land owners but they had the right to enjoy the benefits from the land. The estates which were held and cultivated by ordinary people in exchange for paying duties to the Ottoman state were subject to a limited inheritance right. The estates of military feudal lords were abolished by the Ottoman Hatisheriffs of 1830 and 1833, which eventually made private land ownership possible. The subsequent changes in the tax system facilitated the departure from feudalism and enabled the peasants (commoners) to become owners of the land they cultivated.
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The article assesses the role of one of the Seven Sages, Chilon, a lawgiver and a mentor of the ancient Sparta. The analysis of Chilon’s aphorisms displays that they are not just a sum of worldly wisdoms. More appropriately they may be perceived as a compendium of moral instructions that have become an integral part of the Spartan educational system. A special attention is given to deciphering the original meaning of the maxim “Know thyself” that is attributed to Chilon. The author hypothesizes that in a Spartan polis, whose citizens were used to a minimum of written laws, Chilon’s edification could serve as binding unwritten rules.
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The subject of the paper is the institute of hutman in Serbian medieval mining law. The first question to be answered is related to the extent of transplantation of the institute from Saxon customs to Serbian written law. The second aim is the definition of the competence of hutman and the way he was appointed. The results indicate the Despot Stefan’s Mining Code recognized two different institutes of hutman. The first was auxiliary service to urbarar, measuring and marking the land in the procedure of granting mining concessions and after breaking one mine into another, charging a fee. He was probably appointed by tax collectors. The second one is the supervisor of a mine, entitled to collect the payment from the owners of its shares, to record it and presumably to take care of correct conducting all kind of activities in the mine. Most likely he was employed by the shareholders of the mine partnership. The linguistic, systemic, and historical interpretation is applied as well as the comparative method and regressive analysis.
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As a social and political association, the Central Council emerged on March 3, 1917 as a result of the February Revolution in Russia. At that time, under the conditions of the First World War, there was a decline in zemstvo economy, increase in an amount of unpaid zemstvo taxes, decrease in a volume of zemstvo income and concurrently increase in spendings. As a consequence, there was a financial failure of zemstvos. Taking this into consideration, they lost public trust and support. Therefore, one of the most important reforms of the Provisional Government of Russia was to be a reform of zemstvo self-government that received a full support of the Central Council. According to the leaders of the Central Council, the reform would provide ukrainization, democratization and modernization of zemstvos, establishing such local authorities on their basis which the Central Council would rest upon in its regional policy. As a result of the reforms and establishing cooperation between the Central Council and zemstvos, they had to be transformed into genuine local authorities and form the foundation of the Ukrainian statehood. In the spring of 1917, zemstvos expressed their support for the Central Council. They started ukrainization of their own institutions, conducted active social, political and educational activities which were aimed at supporting nation creative activities of the Central Council, spreading the ideas of the Ukrainian statehood and carrying out democratic reforms. Zemstvos promoted in the making of the social and political association «Prosvita» (Enlightenment). However, in July 1917, the Central Council started preparations for introduction of a new system of local self-government. According to legislation of the Provisional Government of Russia, in September 1917, democratic elections for councilors of provincial, county and township zemstvos were held. As a consequence of the elections, the process of democratization and ukrainization of zemstvos took place. Not nobles but peasants constituted more than 60% of zemstvo composition. The newly elected zemstvos fully supported the policy of the Central Council. However, the distancing process between the Central Council and zemstvos continued to develop after the democratic elections to zemstvos. This contradictory attitude of the Central Council to zemstvo self-government was due to two main factors. On the one hand, zemstvos actively supported the national state creative process that prompted the Central Council to cooperate with them. However, during the First World War, there was a decline in zemstvo economy, zemstvos lost public trust and support. So, on the other hand, cooperation with zemstvo self-government discredited the Central Council.
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The article deals with the activities of the Central Council which intended to carry out a local self-government reform. The Third Universal of the Central Council provided for expansion of powers of zemstvo self-government but subordinated them to the General Secretariat of the Internal Affairs, which is contrary to democratic principles of local self-government. Expansion of zemstvo powers was provided by the “Law on Elections to the Constituent Assembly of the UPR” (Ukrainian People’s Republic) on 16 November 1917, according to which organization and conduct of elections were relied on local self-government. Aggression of the Bolshevik Russia and deepening the crisis of zemstvo self-government forced the Central Council to declare extraordinary elections to people’s (zemstvo) councils and introduction of a brand new system of local self-government by the Fourth Universal of 9 (22) January 1918. On March 6, 1918, the Central Council adopted the Law “On Administrative and Territorial Division of Ukraine” which provided “establishment of new bodies of self-government and authorities” due to liquidation of provinces and districts and establishing a division of the UPR into states. However, the Central Council failed to implement this law and zemstvos continued to perform the functions of local self-government. The policy of the Central Council, which had the goal to eliminate zemstvo self-government, caused deterioration of relations between zemstvos and the Central Council. To preserve zemstvo self-government, representatives from seven provincial boards established the All-Ukrainian Union of Zemstvos in April 1918. But establishment of the Union did not contribute to overcoming the economic and fiscal zemstvo crisis and led to deepening the process of politicization of zemstvo self-government. The Constitution of the UPR of 1918 provided a three-tier system of local self-government in which the leading role was given to a local element – a community. The Constitution of the UPR was based on the key democratic principles of local self-government arrangement, provided for mechanisms of power decentralization. However, it is known that the Constitution of the UPR of 1918 could not be enforced due to a loss of the state power by the Central Council. The reform of local self-government in the UPR was hindered by aggression of the Bolshevik Russia, conditions of internal political instability and social and economic crisis. However, these were inadvertences made by the Central Council that were the main reason for failure of the reform.
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En relation avec la protection de possession parmi plusieurs questions inexpliquées, de la plus grande importance, pour la théorie et la pratique juridiques est la question des buts de cette catégorie de protection à savoir les raisons pour lesquelles possessio comme rapport réel a obtenu une protection autonome contre les empêchements et les privations. Il sépare les diverses conceptions sur le caractère et la nature juridiques de la possession des théories sur les buts de sa protection. Il constate que toutes les trois théories fondamentales (de Savinji, de Jer- ing et la théorie „de la volonté") ne soulignenet que certaines circonstances pour lesquelles la possession iouit la protection et l'auteur ne prend pas en considération l'ensemble des problèmes et il ne diffère pas les buts antécédents des buts ult-érieurs. A la base des certificates de source, de nouveaux faits et des circonstances on cherche les raisons décisives de la protection juridique de la possession dans l'historié de possession romaine, dans le développement des rapports de possession sur „figer publicus", dans son régime juridique et dans le développement de la propriété romaine. Vu que les classes les plus riches de la société romaine n'étaient pas les propriétaires des latifuniums, mais seulement les propriétaires de acrer occupatorius. Au temps du développement du marché, de l'affaiblissement de la solidarité entre les sens, du formalisme lors du transfert de la propriété foncières privées, la régulation juridique du régime des terrains d'Etat, la protection de possessio est devenue indispensable. En premier lieu et dans le but d'assurer les intérêts de la classe dominante des propriétaires d'esclaves et pour une protection plus rapide et plus efficace de leurs propriétés, on a ofsert une protection de possessoire mais seulement indirectement. Son but était aussi le maintient de l'ordre publique contre l'arbitraire et l'utilisation libre des propriétés. Les raisons pratiques ont conditionné eue contre le droit de la propriété, les rapports réels soient protégés. Dans la situation concrète cela convenait le mieux à la classe dominante et indirectement aux intérêts publiques et à la sûreté du régime. Cette protection était utilisée aussi nar les propriétaires privés car s'était pour eux la sécurité plus rapide et plus affic- ace ciue la procédure pétitoire avec ,,rei vindicatio". Lors de l'application ultérieure la protection de possession a réausé aussi d'autres buts comme la préparation et la faculté de la gestion de la procédure pétitoire, puisque dans cette procédure les rôles des participants du litige étaint ordonnés.
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Problem setting. Problems being topical for the domestic jurisprudenceconcerning the possibility and advisability of the scientific sources using in the formof the immediate citation in the judicial decisions have been analyzed. Problems as tothe possibility and advisability of the scientific sources citation in the judicialdecisions and necessity of the spreading of such practice in the Ukrainian courtsactivity by the domestic jurisprudents has not been specially investigated. To ourview they should be considered in the broader context of the science influence on thelaw enforcement, to what extent results of the scientific research are in demand inlegal practice and possible ways of its improvement. Will this practice promoteincreasing of the administration of justice quality, taking lawful and fair decisions,increasing of the court authority? Working out of the corresponding problems in theaspect of the domestic reality has been actualized in connection with the conductingof the court reform being recognized as one of the most urgent in the proclaimedprogram of the reform «Strategy 2020» by the President of Ukraine P. Poroshenko.The conclusion as to the necessity of such practice spreading in the domestic courtsactivity has been made.Recent research and publications analysis. Works by H. Beverley-Smith, J.Pradel, F. Shecaira, S. Shevchuk, M. Savchyn, M. Savenko, Y. Yevgrafova O.Yevsieiev are noteworthy among modern scientists researching this problem.Paper objective. The main aim of the article is determination of peculiaritiesof the legal science achievements using (in the form of the direct citation) in theactivity of the domestic court instances and foreign courts.Paper main body. Today in the countries of the continental legislation lawjustly is considered as the most developed form of legal rules strengthening. As aresult of the precision of the presentation of legal norms it is the best technical meanof their strengthening in the epoch when the complexity of the social relationshighlights precision and clearness of its formulation. Along with this the idea of theabsolute sovereignty of law in the Roman-Germanic legal family is fiction. Judgeshas not relied exclusively on law and refer to principles of law, case law, legaldoctrine and they «search» law in other its manifestation (sources of law) and referdirectly to them in the court acts. Such changes in the understanding of law and itsuse is connected with the revival in the twentieth century of the natural and legalthought. Judges become more «open» while making their decisions trying to take intoaccount social and economic, political, cultural, religious aspects of the case beingthe subject of the trial and go beyond congealed legal rules in searching more flexiblelegal decisions that meet a complex and changing life circumstances. Such position isquite common for lawyers of the Anglo-American law where law has never beenstarting point in their professional legal activity, scientific researches and training oflegal personnel.Conclusions of the research. On the base of the analysis of the court practicein the countries of the continental and Anglo-American law it has been ascertainedthat judges while administering justice, especially in so-called complex and the mostresonant cases quite often turn to the achievements of the legal science and usecitation of scientific works in their court decisions. By this it makes their legalposition more reasonable and convincing and as a whole increases the authority of thejudicial branch of power. It is especially true in domestic realities as the current stateof the Ukrainian society being marked by the quite low level of confidence in courts.That is why, it is quite reasonable spreading of such a practice in the Ukrainian courtsactivity.
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The church court is a special court in the system of several different types of courts that existed in the legal order of the Serbian medieval state. Dušan’s Code is the most important historical legal document and the constitution of medieval Serbia, which established the legal position of the Serbian Orthodox Church, provided for the administrative and economic immunities of the church, and instituted the church court. The rights guaranteed in Dušan’s Code were enjoyed by the church not only because of its religious, spiritual and socio-humanistic functions but, above all, because of its political role in medieval Serbia.The paper aims to present the norms of Dušan’s Code regarding the church court and analyze them from the perspective of legal history, in order to establish the jurisdiction of the church court, the types of adjudicated cases and the protection of the exclusive right of the church to judge in disputes within its jurisdiction.
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The paper examines certain canon law issues encountered the Serbian Orthodox Church in Bosnia and Herzegovina in the period until 1905, when the Church authorities enacted a Statute which definitely resolved the legal status of the Serbian Orthodox Church in the Austro-Hungarian Empire. In this period, the Viennese court and the Patriarchate of Constantinople regulated the legal position of the Serbian Orthodox Church in Bosnia and Herzegovina by the 1880 Convention on the temporary solution of relations between the Serbian Оrthodox Metropolitanates in Bosnia and Herzegovina with the Patriarchate of Constantinople. The Convention caused a number of problems and conflicts, both in terms of relations between the church and the state as well as within the Serbian Orthodox Church. In the central part of the paper, the author describes the relations between higher order clergy (hierarchy) and church-school municipalities (national leaders and lower order clergy), and analyses certain problems in their relations. The author considers these problems from the aspect of canon law of the Orthodox Church, in order to show how the relations between the various structures and services in the Serbian Orthodox Church were organized in the new legal state and socio-political context.
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New scientific disciplines dealing with the attainments and the pests of the modern civilization pose a practical question whether traditional categories may apply in their context. The founders and theoreticians of communicology addressed this question by placing communicology within the historical framework. The interdisciplinary nature of communicology provides ample opportunity for observing brief sequences from specific historical periods and disciplines, including the Serbian legal history. In this article, the authors provide a sequence of brief segments from the Serbian legal history (including: the 1869 Constitution of the Kingdom of Serbia, the 1888 Constitution of the Kingdom of Serbia and a number of other examples illustrating different forms of mass communication applied in significant political processes underlying the historical development of Serbia), which are considered from the aspect of the communicological theory and principles. The provided analysis is certainly not intended to provide absolute answers or definite conclusions on the processes which have been observed from the communicological standpoint but this analysis maybe used as an indicator how tradition may be placed in context of new scientific disciplines.
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The aim of this paper is to analyse the most important modern attempts to reconstruct the origin and development of civil procedure – particullarly in ancient Roman law – and try to answer the vexed question of whether the earliest Roman civil procedure is one type of private justice or whether it has the characteristic features of public justice from its inception. Cotemporary studies of civil procedural law still follow the theory of private justice (Schiedsgerichtstheorie) in the form of arbitration as an explanatory paradigm for the origin and development of civil procedure. However, the Schiedsgerichtstho-rie did not originally emerge and develop within the field of civil procedural law, but in the writings of Roman law scholars during the first half of the 20th century. More recent romanistic studies, on the contrary, have refuted the Schiedsgerichtstheorie and advocated with convincing arguments the idea that the ancient Romans, like all other peoples, settled disputes in their community by turning to the supernatural powers of their deities in the public manner. The author is of the opinion that it is about time that contemporary civil procedure scholarship abandoned this obsolete theory of private justice and took into account more recent Romanist reconstructions of the origin and development of Roman civil procedure, starting from the insight that the religious based rituals of public justice represented the very first beginnings of that procedure.
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Private uses of public places in the city. Current problems and legal solutions of ancient Rome.
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During the First and Second Uprising, influenced by historical, social, cultural and ethnic processes that have a significant share in the formation and development of the Serbian state, women were punished for criminal acts of infanticide and witchcraft which shows a number of court decisions. The customary and canonical rules from that period also predicted specific sanctions for these criminal acts. To prevent the commission of the crime of infanticide, Karadjordje allowed to go unpunished the girl who rejected her child, and the first sentence prescribed by Milos was fine. However, according to the court judgments, which were in accordance with the rules of positive law, infanticide has failed to curb. Therefore, the penalty policy tightening and usually carries a sentence of infant- shot knout (whipping). Prevention of infanticide is not helped by the death penalty, which was first enacted from Karadjordje and later from Milos in the period of one year. Cash, body and the death penalty, which is positive legislation anticipated in the case of a crime of infanticide have just taken from the customary rules. Unlike infanticide punishment, as for the punishment of witches, there is a gap between the canonical and customary rules on the one hand and legislation on the other hand. Karadjordje ordered that those who killed or tortured the witches will be sentences in the same way, but he was the first who did not respect this order in practice.
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