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Parlament we francuskiej tradycji ustrojowej

Parlament we francuskiej tradycji ustrojowej

Author(s): Jarosław Szymanek / Language(s): Polish Issue: 6/2013

This article presents two different traditions of perception of parliament existing in the French doctrineof constitutional law. In the fi rst one — called the Jacobin tradition — parliament is treated quiteexceptionally, as an authority expressing national sovereignty and, therefore, unchallenged. That traditionhas found its fullest expression in the political system of the Third and Fourth Republic, and especially the Third Republic which developed an extremely strong position of parliament, calledthe monistic parliamentary system, one-sided, predominant pathological or extreme parliament. Fromthat time on in France a specific meaning ascribed to the phrase “parliamentarism” which has ceased to be only the system of government with specific relationships between the three elements of thesystem, i.e. the government — parliament — the head of state, and has become synonymous with exuberant, extremely strong position of parliament. This position was, inter alia, reflected in: the lack of formalized procedures for holding government to account, an exclusive character of acts of parliamentand their unrestricted scope, or election of the president of the Republic by parliament, whichled to the situation in which he became “a hostage of the parliamentary majority.”This position of parliament, so shaped or rather deformed, has driven the reform efforts, known as rationalization. All of them belong to the second section of French parliamentary tradition, associated with criticism and, consequently, the weakening of the position of parliament in the systemof government. This tradition, called the Bonaparte tradition, found its fullest expression in thepolitical system of the Fifth Republic. Therefore, Gaullism is sometimes called a contemporaryversion of Bonapartism. Their common denominator is the desire to restrict parliament in the name of balance of powers. They are reflected e.g. in the limitation of statutory matter, the introduction of constitutional judiciary or wider use of referendums and the establishment of universal and direct presidential elections. The latter two instruments especially have anti-parliamentary connotation, because they juxtapose parliament with two other institutions which also express national sovereignty

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Alma Mater Studiorum. O genezie i początkach uniwersytetów

Alma Mater Studiorum. O genezie i początkach uniwersytetów

Author(s): Marek Maciejewski / Language(s): Polish Issue: 2/2017

The origin of universities reaches the period of Ancient Greece when philosophy (sophists, Socrates, Plato, Aristotle, stoics and others) – the “Queen of sciences”, and the first institutions of higher education (among others, Plato’s Academy, Cassiodorus’ Vivarium, gymnasia) came into existence. Even before the new era, schools having the nature of universities existed also beyond European borders, including those in China and India. In the early Middle Ages, those types of schools functioned in Northern Africa and in the Near East (Baghdad, Cairo, Constantinople, cities of Southern Spain). The first university in the full meaning of the word was founded at the end of the 11th century in Bologna. It was based on a two-tiered education cycle. Following its creation, soon new universities – at first – in Italy, then (in the 12th and 13th century) in other European cities – were established. The author of the article describes their modes of operation, the methods of conducting research and organizing students’ education, the existing student traditions and customs. From the very beginning of the universities’ existence the study of law was part of their curricula, based primarily on the teaching of Roman law and – with time – the canon law. The rise of universities can be dated from the end of the Middle Ages and the beginning of modernity. In the 17th and 18th century they underwent a crisis which was successfully overcome at the end of the 19th century and throughout the following one.

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Concordia discordantium canonum Gracjana w kontekście sporu między imperium i sacerdotium średniowiecznej Europy

Concordia discordantium canonum Gracjana w kontekście sporu między imperium i sacerdotium średniowiecznej Europy

Author(s): Piotr Ryguła / Language(s): Polish Issue: 2/2017

Primarily, Gratian is known as the author of the Concordia discordantium canonum and is regarded as the “Father of Canon Law” and the most famous canonist. In the title of the Decretum he included an idea which accompanied him during his work: it was reconciliation and coordination of inconsistent canons. As a lecturer of the School of the Law in Bologne he knew how important cohesion in law was and as a follower of the Gregorian Reform he knew, too, how important the Canon Law was in the dispute between imperium and sacerdotium. Both factions, i.e., the Holy Roman Emperor and the Pope, in their right argumentation, appealed to the recognized authorities and the law. Both needed the law itself internally consistent as a source of these arguments. These issues, as mentioned in the title, are discussed by the author of the present article.

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Kultura prawna w Polsce przed założeniem Akademii Krakowskiej

Kultura prawna w Polsce przed założeniem Akademii Krakowskiej

Author(s): Artur Lis / Language(s): Polish Issue: 2/2017

Culture is a very complex reality of human existence, which is comprehended in its different aspects. By the object of culture they are all products of human activity, events, behaviors ordered in certain examples present in societies in the form of rules of conduct which are determined by customs, morality and legal regulations. The acceptance of Baptism by Mieszko I of Poland in 966 was the turning point in the Polish history. The country of the first Polish Piast was rooted in the culture of the international community of European states. This situation favored the influence of certain rights of the foreign Polish legal system. In the then practice of Slavic states, the legal system was based on a tribal customary law (i.e., universally recognized, time-honored form of behaving, accepted in the given social community). From the 12th and 13th centuries the knowledge of Roman law and canon law broadened in Poland. During this period, developing the legal thought was based on both types of law. Knowledge of those systems derived from various sources. This process was used for the import of legal manuscripts of Roman and canonistic study to Poland. An example of the reception of Roman law and canon law in Poland until the beginning of the 13th century is the Chronicle of Poland by Master Vincent called Kadlubek (c. 1150–1223). The document is one of the most important and most abundant sources of law in this period.

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Działalność kół naukowych prawników zorganizowanych przez polskich oficerów w niewoli niemieckiej w latach 1939–1945

Działalność kół naukowych prawników zorganizowanych przez polskich oficerów w niewoli niemieckiej w latach 1939–1945

Author(s): Bartosz Janczak / Language(s): Polish Issue: 2/2017

The article deals with the activity of scientific circles of lawyers organized by the Polish officers in German POW camps during the Second World War. Scientific circles of lawyers existed in virtually every camp, comprising reserve officers, who before the war had performed all kinds of legal professions. Initially, they did not have a formalized character, but over time their activity grew to a considerable dimension, as far as the camp conditions allowed. The aim was to integrate the POWs’ legal community through organizing lectures, readings, which raised all sorts of legal issues. However, the most important task was to conduct educational activities. Law courses were launched for apprentices, law students, who had to stop studying law because of the war, and for people who wanted to start studying law. At the end of each annual course, students passed examinations. The camp library, equipped with appropriate literature on law and legal matters, served as an invaluable source of specialist knowledge in those conditions. After leaving the captivity, many of the participants of the camp courses began working in the legal profession.

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Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

Author(s): Edyta Sokalska / Language(s): Polish Issue: 2/2017

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

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Małżeństwo świeckie i wyznaniowe w nauczaniu prawa polskiego w latach 1945–1993

Małżeństwo świeckie i wyznaniowe w nauczaniu prawa polskiego w latach 1945–1993

Author(s): Tomasz Rakoczy / Language(s): Polish Issue: 2/2017

The institution of marriage is important for the both systems of law: state and church, as both of these two bodies must respect the truth about the institution of marriage. As the analysis of the problem shows, i.e. the possibility of contracting marriage in the religious form and in presence of other religious elements, the mentioned rule was not always respected by the Polish State. Religious elements were in fact significantly present in different jurisdictions of the partitioning states, which were in force on Poland’s territory under the rule of individual partitioning states. The possibility of the presence of religious elements in executing institution of marriage was taken into account in discussion that took place in Poland after the year 1918. All projects of acts of law were unfortunately rejected. The first act of law that was promulgated in 1945 presented a completely new, strange and even inimical to the Polish tradition, lay model of executing the institution of marriage. Its tightening followed rapidly after the promulgation of the next act of law, i.e. the Code of Family in the year of 1950. A change came about in the year 1998 through the Polish Concordat which came into force beginning with the year 1993. The possibility of contracting a civil marriage in the religious form was opened first for the Catholic Church. At the next stage, the same possibility was recognized in the case of ten other churches. As the analysis of the problem shows, contracting of a civil marriage in the religious form has always stayed under the control of the registry office. A clergyman is only an executor of the procedure.

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Wpływ adeptów przedwojennej lwowskiej edukacji prawniczej na orzekanie Wojskowego Sądu Rejonowego w Opolu w latach 1950–1954 na przykładzie pierwszego szefa WSR w Opolu mjr. Edwarda Kotkowskiego i sprawy szewca Bolibrzucha z Moszczanki

Wpływ adeptów przedwojennej lwowskiej edukacji prawniczej na orzekanie Wojskowego Sądu Rejonowego w Opolu w latach 1950–1954 na przykładzie pierwszego szefa WSR w Opolu mjr. Edwarda Kotkowskiego i sprawy szewca Bolibrzucha z Moszczanki

Author(s): Janusz Oszytko / Language(s): Polish Issue: 2/2017

The influence of students of pre-war Lviv legal education on adjudicating by the Provincial District Court in Opole in the years 1950–1954 offers, in the author’s opinion, an important research issue. Especially in a case such as the one mentioned in title of the article, when the accused was a pre-war Polish citizen, a resident of the eastern borderlands of the Second Republic. It seems that the case is very instructive. It shows a pre-war graduate in law from the University of Lviv, who gradually passes onto the side of the communistic state and a simple man who knows the truth about the Soviet Union. Others are also described as officers of the security organs, mostly inept, but still exerting a tremendous pressure on society to consolidate communists’ power in postwar Poland. A railwayman of the Borderlands can be a summary of the summary – you should stick to the truth and not give in to strong pressure of the evil.

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Przejmowanie wyznaniowych fundacji dobroczynnych w PRL przed wejściem w życie dekretu z dnia 24 kwietnia 1952 roku o zniesieniu fundacji

Przejmowanie wyznaniowych fundacji dobroczynnych w PRL przed wejściem w życie dekretu z dnia 24 kwietnia 1952 roku o zniesieniu fundacji

Author(s): Andrzej Szymański / Language(s): Polish Issue: 2/2017

This article analyses, in terms of the legal aspect, the process of dissolution of selected religious foundations before the decree of 24th April 1952 concerning the elimination of those foundations entered into life. The author bases his arguments on the analysis of concrete cases, whose descriptions were found during his archival research.

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Класифікація правових обмежень як засобів регулювання суспільних відносин

Класифікація правових обмежень як засобів регулювання суспільних відносин

Author(s): E. Levada / Language(s): Ukrainian Issue: 138/2017

The author’s model of classification of legal restrictions as means of regulation of public relations in the state depending on different social and legal criteria is presented. Legal restrictions are proposed to be classified according to such criteria as: the ownership of a normative act, which provides for a specific restriction to a specific branch of legislation; The place of the normative act, providing for limitation, in the hierarchy of normative acts of the state; The scope of activities of the subjects on which legal restrictions are designed, the specifics of the content of the regulatory impact of legal restrictions on entity of public relations; Depending on the element of the structure of the rule of law, which provides for a specific restriction; Duration of the legal restriction in time; The degree of certainty of the entity, to which the calculated limitations; Method of application (implementation) of the legal restriction. Taking into account the provisions of the current legislation of Ukraine, examples are given and the essence of concrete examples of application of legal restrictions to participants of public relations in typical life situations is revealed. It is noted that the legal design of legal restrictions in most cases is connected with the restriction of the rights and freedoms of a person, and therefore their further doctrinal development requires close attention of law researchers who are representatives of different areas of legal science.

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Filozofia prawa i prawo proceduralne w „Opowieści o elokwentnym wieśniaku”

Filozofia prawa i prawo proceduralne w „Opowieści o elokwentnym wieśniaku”

Author(s): Wojciech Czabanowski / Language(s): Polish Issue: 4/2016

The aim of this study is to reconstruct (1) the ethics and the philosophy of law and the state contained in The Eloquent Peasant, in particular in the Peasant’s nine complaints, and (2) the elements of procedural law of the Heracleopolitan monarchy according to the version presented in the story, and (3) to define the concept of Ma’at as it is used in the tale. The Eloquent Peasant is a piece of ancient Egyptian widsom literature piece, composed during the First Intermediate Period, picking up the theme of law, public administration and corruption.

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Johna Miltona droga ku rewolucyjnej dyktaturze. Część 2

Johna Miltona droga ku rewolucyjnej dyktaturze. Część 2

Author(s): Tomasz Tulejski / Language(s): Polish Issue: 104/2017

John Milton, an English poet best known for his epic poem Paradise Lost, was also a great politicalpolemist of the times of religious flux and political upheaval. He used his pen in defense ofthe republican principles represented by the Commonwealth of England. Milton advocated theright of the people to hold their rulers to account, and thus implicitly sanctioned the regicide. Accordingto Skinner Milton offers a purely neo-Roman view of freedom and free states. He arguesthat, unless the people are able to govern themselves, they will live as slaves, under the will ofsomeone else. So, for Milton monarchy is an enslaving form of government. In this Article theAuthor argues, that Milton was not a partisan of mixed government as other republicans such asHarrington, Sidney and Nedham, but he prised and accepted revolutionary military dictatorshipfor the defense of revolution.

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Да ли је завештање било нормирано у Хамурабијевом законику?

Да ли је завештање било нормирано у Хамурабијевом законику?

Author(s): Miloš Stanković / Language(s): Serbian Issue: 3/2017

The Code of Hammurabi does not include any provisions that could be qualified at least as the traces of the formation of last will as a legal transaction by which a person fulfilling the prescribed requirements, directly and unilaterally, in the form envisaged by the law, without consideration and with the possibility of revoke, disposes of his/her estate in case of death, in terms of the changing of the custom or law-intended scope of his/her heirs or changing the amount of their inheritance quota. First of all, the limitation of the scope of persons who could have an active testamentary capacity to God-devoted temple-maids and templevirgins only, in particular to the devoted temple-maids and temple-virgins of the temple of the Marduk of Babylon, regardless of the privileged social and legal status they had, is not enough to draw a general conclusion about the possibility of bequesting. Secondly, the absence of any precisely arranged form for possible disposal in the case of death in the Code of Hammurabi Articles 179 and 182, as well as the dilemma whether such disposals were with or without consideration, are not in concordance with the legal nature of the last will. Finally, the failure to mention the possibility to unilaterally modify or revoke such disposal until the moment of death, is another argument for the assertion that the idea of the freedom of testation was still not in its infancy at the time. Although the insistence on the existence of all, or even most of the necessary elements of the legal nature of the last will in the Code of Hammurabi, would at first glance appear to be an anachronism, one should not forget that these contemporary features of the legal nature of last will are familiar with the Roman law from their very first testamentary forms − most of them being familiar with the Ancient Greek law as well, through the testamentary legacy and the testamentary adoption. Bearing in mind the entirety of the Code of Hammurabi, it can be said that it is more familiar with the beginnings of the contractual inheritance (contractual legacies, to be more precise), i.e. the consensual arrangement of the legal destiny of precisely certain parts of the estate of certain categories of persons after their death, for which, as a proof, there primarily are nudunu and donatio mortis causa. It is quite in accordanve with the hypothesis that in almost all civilizations the bilateral disposal of property in the case of death has preceded the unilateral ones. Despite the innovative role in creating Article 182 of the Code of Hammurabi, the absence of last will in this codex was confirmed both by the combined application of the comparative and historical method, as well as the systematic interpretation and the interpretation by purpose of the Code of Hammurabi itself. None of the codes, spatialy and civilizationally speaking, close and similar to the Code of Hammurabi, as well as none of the codes that are related to it in terms of the level of social and legal development, such as the Ur-Namu Code, the Lipit-Ishtar Code, the Central Syrian Laws, the Hittite Laws, or the Law of Moses, are fimiliar with the roots of a legal transaction which could be qualified as a last will. Bearing in mind that the very content of the Code of Hammurabi is a combination of existing customs in the area between Tigris and Euphrates and the innovating ambitions of the legislator, the absence of clear indications of the freedom of an individual to unilaterally regulate the future of his/her estate in the case of his/her death, indicates that the Babylonian law of the emperor Hammurabi had not yet reached the level of the necessary development for the affirmation of this legal transaction. On the other hand, we should not overlook the fact that the Code of Hammurabi had an appropriate systematics – truly enough, not in the spirit of the modern time, but certainly in the manner of understanding the way of how to present legal matters in the time the Code was created. If things are perceived in this way, it is clear that both Article 182 and Article 179 actually constitute a part of the corpus of norms that sought to ensure the maintenance to devoted temple-maids and priestesses, depending on whether they received the dowry from their fathers or not, regardless to the fact of their living in the temples or somewhere else. It seems that in this family-law context, not in an inheritance-law one, in the sense of guaranteeing the provision of livelihoods and not unilateral management of the inherent legal consequences of one’s own death, it is necessary to consider not only the authority of the priestesses in the temple of the Marduk of Babylon, which in Article 182 of codification is expressed in words that „Marduk may leave her estate to whomsoever she wishes“, but also the similar authority that is guaranteed in the article 179 of the Code, which states: „If a „sister of a god,“ or a prostitute, receive a gift from her father, and a deed in which it has been explicitly stated that she may dispose of it as she pleases, and give her complete disposition thereof: if then her father die, then she may leave her property to whomsoever she pleases.“ The reason for the special attention paid in the Code to Marduk’s priestesses should be sought not only in the fact that these God-devoted women were women of a higher social status who enjoyed great reputation for the work they did, but also in the fact that Marduk was the supreme authentic Babylonian deity that pushed out the previous gods, and was in need to legally obtain authority.

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Rzymskie inspiracje kanonu 39 (Saepe coningit)
IV Soboru Laterańskiego (1215)

Rzymskie inspiracje kanonu 39 (Saepe coningit) IV Soboru Laterańskiego (1215)

Author(s): Łukasz Jan Korporowicz / Language(s): Polish Issue: 2/2016

In this article the author analyses three hypothetical sources of inspiration for papal lawyers whoprepared canon Saepe coningit in the Fourth Council of the Lateran. This analysis does not give a unequivocal answer, which Roman solution was the reference point for papal lawyers. All the presentedsolutions, i.e. actio Pauliana, a case of selling a stolen thing and by usucaption of a stolen thing differin respect to a factual state, which became the subject of canon regulation in Saepe coningit or are identical with it. Thus, we can accept that the statement non obstante civilis iuris rigore, which was used by the Council Fathers, in fact did not apply to any concrete regulation of the Roman Law but it pointed to itas a legal order.

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Розвиток унітарних відносин в Україні як одна з умов формування сучасної правової системи

Розвиток унітарних відносин в Україні як одна з умов формування сучасної правової системи

Author(s): O. Sydorenko / Language(s): Ukrainian Issue: 139/2017

The article considers the issue of optimization of the state structure in modern Ukraine on the way of reforming the legal system in accordance with European standards. It is concluded that at the present stage of state building the unitary form of the state structure is optimal. At the same time, practical actions are needed in the direction of decentralization of state power to create a civilized state. The great influence on the development of the modern legal system of Ukraine is due to the integration of the legal norms and principles generally recognized by the world community into its structure. Today, there are not so many states, which, having emerged as unitary, then changed the form of government into federal. The process of studying various types of unitary states should be based on a clear methodological basis. Ukrainians have confirmed that they are Europeans who profess the same values of democracy and citizens of European countries that have a decent standard of living for people. Democracy in the state, sovereignty and independence are provided not by changes in the territorial structure, but, in particular, by stable economic growth. Over the past decades, there have been processes of transformation of federal states into unitary ones, without making any changes to the constitution. According to studies by most experts, for our country the optimal form of government is the unitary decentralized state. The author defends the preservation of the unitary character of the Ukrainian state at a certain decentralization of power, development of the institution of local government and improves the structure of Parliament. We must build the newest Ukraine with a modern legal system, focusing on best practices, but not trying to copy even the best world examples.

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Problemy wymiaru sprawiedliwości w exposé premierów II RP

Problemy wymiaru sprawiedliwości w exposé premierów II RP

Author(s): Adam Sygit,Bogusław Sygit / Language(s): Polish Issue: 36/2017

Expose are program speeches of newly elected Prime Ministers. They include the sets of the most pressing issues on functioning of the state and society, which demand action from the government. The subject of this artic- le are Prime Ministers of the second Polish Republic exposés, which are limited to assessment, whether and which matters from the range of justice were the concern of governments of the second Polish Republic and how they were tried to be solved.

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Újabb lépés a római közjog újrafelfedezéséhez Magyarországon

Újabb lépés a római közjog újrafelfedezéséhez Magyarországon

Author(s): István Bajánházy / Language(s): Hungarian Issue: 3/2017

Pókecz Kovács Attila: A principátus közjoga. Dialóg Campus Kiadó, Budapest–Pécs, 2016

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,,Sąd nad św. Franciszkiem z Asyżu” Giotta – próba prawniczej egzegezy

,,Sąd nad św. Franciszkiem z Asyżu” Giotta – próba prawniczej egzegezy

Author(s): Karol Adamczewski / Language(s): Polish Issue: 4/2017

The fresco painted by Giotto Bondone showing the Renunciation of Worldly Goods by St. Francis undoubtedly arouses aesthetic and spiritual feelings. Nevertheless, the scene presented by Giotto also bears some legal characteristics. Thus, it may become a subject of some interesting discussions in the legal sense. First of all, its convention resembles to some extent a dispute before court where the parties and a judge take part in the proceedings. The characters presented, particularly father, son and the bishop, indirectly refer to such important legal institutions as patria potestas and audientia episcopalis. The subject of the dispute is also significant. In the analyzed scene, it relates to the inheritance of property rights and a demand to be obedient to the paternal authority. The relationship between the secular and spiritual power also constitutes a certain problem. Moreover, the issue of divine and human justice is raised. Therefore, the fresco of the Italian master bearing an artistic value might become a subject of a legal reflection and in this way fit the suggested approach: art in the law and law in the art .

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INIURIA ALTERI FACTA ПРЕТКЛАСИЧНОГ РИМСКОГ ПРАВА

Author(s): Andreja Katančević / Language(s): Serbian Issue: 1/2010

This is an attempt to offer a new reading of a short sentence of the Twelve Tables, and to solve the puzzle of the legal protection of honor in preclassical Roman law. Relying on various opinions expressed in the literature, here are given a new answers to the two questions. Firstly, what the Twelve Tables included under the iniuria alteri facta. Secondly, how did the delict spread to the notion of iniuria of whom the classical lawyers wrote. Author tries to challenge the generally accepted view that iniuria alteri facta originally was light bodily injury which later included insults, proving that the legal evolution went in reverse.

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DIE ROMANISTISCHE FORSCHUNG IN SLOWENIEN*

Author(s): Janez Kranjc / Language(s): German Issue: 3/2010

The research of Roman law is inseparably connected to the development of legal teaching in Europe. Until the Second World War, Roman law represented an essential part of the legal curricula at European faculties of law. The advantages of studying Roman law were obvious: by understanding the intricacies of Roman law, the student could perceive the legal system as a whole, develop a precise and concise legal language, learn to comprehensively and precisely analyse legal texts, learn the historical and social dimensions of law, become familiar with the Latin legal terminology, the lingua franca of the learned lawyers, etc. The teaching of Roman law went hand in hand with its research. As the presence of Roman law in the legal curricula has been considerably diminished during the last decades, so has the research thereof. It would be wrong, however, to abandon further research of Roman law. In some form, both teaching and research of Roman law are essential for the legal studies if we want to educate legal intellectuals and not mere legal technicians.

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