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The establishment of Communism in Romania meant not only the violent pursuit of the political will of the "proletariat" but also the constitution of a constitutional architecture to maintain and develop the new social order. The state became the essential instrument of communist political action, having the "historical" mission to transform capitalist society into a communist one, to eliminate the "old ruling class" (capitalist, bourgeois, political, legal and security institutions national or education and culture, etc.). This "revolutionary" action meant the destruction of the Romanian political, economic and cultural elites that had crystallized in the period between the two world wars. On this virgin site, cleansed of "the tares of the bourgeois classes and of her servants," she was preparing to establish and sow a new dominant class, "truly democratic, with country love". The new political class came from workers and peasants, authentic representatives of "the people." In this social reconstruction a special role was played by the new reformed state, renewed in its ideological foundations and whose alveoli were populated with new representatives of the popular population. The reform of the state and the communist society concerned the structure and functions of the state, administrative, judicial, law enforcement, national security (military, information services) and the construction of complicated institutions with economic and social functions. This institutional transformation was oriented both to the structures of the state bodies and to the policy of "cadres", to select and fix new leaders and bureaucrats in the structures of power. The new societal leadership was found in the structure of organizations whose efficiency was determined by the quality of those selected to occupy the various functions of power.
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The paper proposes a new definition of the concept of subjective alimony right as a legal opportunity created and guaranteed by law for an interested authorized person to satisfy material needs by obtaining maintenance secured by the duties of other persons. It has been noted that the proposed concept is formulated taking into account the general philosophical and general theoretical views on subjective right. The content of subjective alimony right has been considered. The opinion has been expressed on the crisis state of subjective alimony right. The causes of the crisis have been identified: the lack of proper legislative fixation of subjective alimony right; implementation problems and problems of abuse of subjective alimony right; ineffective protection of alimony right; neglect of legal regulations in the field of family life. The way out of the crisis is seen in the renewal of family and legal policy, getting rid of ineffective legal norms, and further development of traditional family values.
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In the paper, an attempt was made to compare the structures of territorial governance existing in the second Piast monarchy (ca. 1040–1077) with the structures created at the turn of the 12th and 13th centuries in one of the several principalities of the dukes from the Piast dynasty, into which the monarchy was divided. The subject of this case study is Silesia, i.e. the first of the Piast dukedoms where local governance in form of castellanies was created. The institutions of governance existing in Silesia in the second Piast monarchy seem to be quite similar to the ones known from Polabia under the Ottonian and Salic Dynasties. Elements of those structures were certainly assimilated in the post-division dukedoms but placed in a new institutional order, inspired by the actual needs of the dynasts, who creatively adopted the institution of castellany (Burgrafschaft).
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Legal unification – judiciary, legislative, and regarding the legal professions – has played an important part in the consolidation of the unity of the state and has become a major pursuit of interwar Romania. If the unification of judicial organization and the regime of attorneys has been realized rather quickly, given the specificities of the issues, the one regarding legislation had to last for decades: in 1928, it was done in Bessarabia, in 1938 in Bukovina, and in 1943 in Transylvania. The integration of Dobrogea in the Romanian legal space has been a particular juridical experience, taking into account that it did not solely concern adopting a unitary set of laws, but passing from a legal system (Islamic) to another (Roman-Germanic). Regarding the concrete action, it involved on the one hand by a gradual extension of the legislation of the Old Kingdom, and on the other, by re-codifying, adopting new codes, among which only the Criminal Code and Criminal Proceedings Code entered into force on January 1st, 1937. In this vast process of interwar legal unification, a great part was played by the courts of appeal, as jurisdictions whose activity was focused in expressing at the level of regional specificities the national, unifying element. Three major experiences of this process: Dobrogea, the Cernăuţi Court of Appeals (north of the country) and the Oradea Court of Appeals (on the west) will follow bellow, in separate studies.
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A century marks a representative period of time in the historical becoming and the juridical development in the current age of accelerated evolutions, for the fulfillment of the imperatives of the past, the finalization of the physiognomy of the present, and the foreshadowing of the future perspectives. For us, Romanians, the last 100 years have started and have based their evolutive essences by the political and juridical acts of 1918, that mark the perfection of the process of creation of the national and unitary state, thus opening the way to a social and institutional unification, both legal and cultural. The “growing pains” of the unification has generated, in the field of law, an intense movement of finalizing the components of the juridical national identity, both in positive law, and in the science and culture of law. Verily, the legislative unification has imposed a change in the ways of developing legal regulations; after the initial period of Europeanization and modernization by “legal transplant”, corresponding to the first step of state unification (post-1859), followed by a rapid adaptation to national realities, thus closing into the First World War, with doctrine’s help and by the contribution of case law, the major legal “loans” have constantly been adapted and transformed, in half a century of enforcement, up to becoming Romanian law, well structured, awaiting it final phase as modern Romanian law. In this context, the legal unification imposed by the founding constitutional principle of territorial unity has faced to perspectives of materialization: by extending the existing and consolidated legislation of the “Old Kingdom”, or by radical revision of existing regulations and creating new ones, starting with the big codes, in view of exploiting common elements, of eliminating previous differences, and expressing the aspirations of future developments, authentic and western. And all this either as succession, either as a separate fundamental option. But it was not about a simple technical option, but a much deeper problem, of a cultural nature, with major implications starting from institutional and regulatory traditions, separate until then, different legal mentalities, and diverse immediate interests. Despite the ancient Roman cultural base, ethnically determined, the centuries of separate and different juridical development, accentuated in the modern period, could not be ignored. They were expressed by experiences, beliefs and non-homogenic mentalities, attitudes towards law and justice nuanced by the regional context and diverging interests to change. If natural unification, by “organic” evolution, implied thus a slow evolution, by closing, harmonization and then unification, by cultural mutations, the one imposed by the socio-political realities and priorities implied a rapid leap, which determined the practical promotion of the extension method, and thus closing the legislative union in three steps: in 1928 regarding Bessarabia, 1938 for Bukovina, and finally, concerning Transylvania, given the exceptional historical conditions, 1943. The absence of a unique and unitary juridical culture explains why the unification through major legal regulations, such as the codes, was going to prove 1 Prof. univ. dr., dr. h.c., Directorul Institutului de Cercetări Juridice „Acad. Andrei Rădulescu” al Academiei Române. STUDII ŞI CERCETĂRI JURIDICE, an 7 (63), nr. 4, p. 375–426, Bucureşti, octombrie – decembrie, 2018 376 Mircea Duţu 2 itself premature in the 1930s, given that the juridical identity has manifested itself by the end of the interwar period, and the codification has been postponed sine die. As long as the basis of the juridical development has still the law of the “Old Kingdom”, and the identity shape had to correspond to it, the transitory solution could be transforming it into a national state law. The creation and consolidation of a national juridical cultural, bearing defining components, meant eliminating and overcoming the inferiority complexes generated and maintained by the development through legal transplant, and also encouraging and supporting the trust in one’s own forces and one’s own legal creations. At over 150 of modern becoming and a century of complete unitary juridical development, the science of law and its culture find themselves again at a crossroad. This time, the fundamental option seems to be even more important, referring to the choice between continuing the traditions of its own creative framework in the field, in consonance with the European and global evolutions, by keeping and stating, as possible, of a national specific, or the abandonment of this approach by taking over and accepting as such the custom and international legal progress, uniform and aggressive in its manifestation, preserving thus the historical and legal past as simple piece of museum, to be seldom remembered and commemorated. The latter perspective, also more comfortable and cosmopolite, which has its own tradition in our parts, would mean leading to oblivion the critical sense and Romanian reflection, including here the scientific research in the field of law. Best case scenario, the “creative effort” would be reduce to the technique of interpretation and practical application of the monochrome legal text. On the contrary, the former will suppose responsibly assuming to revalue and continue what has been, promoting scientific creativity and own specificities, of Romanian exceptionality amongst the integratory unification. It is the only way that would correspond to a creative existence and national dignity, implying as a priority that, after the step of legal resettlement of positive law in the matrix of national realities and according to the assimilation and creative development of the new Romanian law, follows the adequate development of theoretical evaluations and case law perceptions. Thus, the theoretical effort would have as a priority elaborating a new synthesis in the fundamental fields, giving a principal and conceptual expression to the new Romanian law, clearing out its enforcement and revealing its development perspectives. For instance, one can take into consideration the great treatises of civil and criminal law, Romanian constitutional law or administrative law. A special place should be taken, within this effort, by the elaboration and editing of a complete history of Romanian law, from its origins to the present day, using new conceptual bases and ideal perspectives.
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This paper aimes to emphasize the existence, between 1859 and 1866, of a sincere fight of the Romanian political elite for the liberal constitutionalism, generally, and for the parliamentary regime, especially, that constantly aimed to eliminate or, at least, to limit the authoritarian rule of the Prince. I would like to remark the decisive contribution of Cuza’s reign to the birth of the Romanian unitary and modern nation-state without turning the constitutional and political modernization into a minor issue. It is useful to notice and it is important to acknowledge the failure of the liberal constitutionalism during the reign of Cuza but, in the same time, it is important to notice that it was never abandoned, at least as ideology, by a great majority of the Romanian political elite. The liberal constitutionalism did not die with the failure of the parliamentary regime. The years following the fall of Cuza witnessed a strong ideological enthusiasm towards the principles and values of the liberal constitutionalism (although in its ethnocentric understanding). In the same time, the making of the 1866 Constitution proved a full aversion towards Caesarism and a sincere commitment with parliamentarianism as a precondition for a successful modernization of the Romanian state and society.
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The author researches the legal history aspect of the evolution of business activities and the influence of the state on the development of different forms of business activities. Besides referring to some examples from the Antiquity, the author analyzes medieval forms of business, particularly in maritime affairs at the Adriatic area. They were developed without special influence of public authorities, through business practices and trade usages. At the Croatian hinterland, the influence of the sovereign as the bearer of public authority upon the development of economy is reflected in the Golden Bull of 1242, an edict issued to Gradec (part of today’s Zagreb). The Statute of Rijeka from the year 1530 contains additional commercial norms that bear witness about a tendency of local authorities to ensure safety of business transactions and quick judicial resolution of disputes between merchants and shippers. In 1717, Emperor Charles VI proclaimed the freedom of navigation at the Adriatic Sea. Thus, Rijeka and Trieste became “porto franco”, which was a new incentive for commercial growth, particularly in maritime affairs. During the 18th century, the sovereigns embarked on a series of administrative and economic reforms which were accompanied by establishing merchandise companies, rudimental joint stock companies involved in different activities, and a growing number of individual merchants.
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The paper, after a brief presentation of the classical Roman jurist Gaius and his most important and best known work, Gai Institutionum commentarii quattuor, presents and analyzes his legal texts concerning mainly ius gentium and its relationship to ius naturale. At the beginning of his textbook, this Roman jurist distinguishes only two types of law: civil law – ius civile and the law of nations – ius gentium (Gai Inst. 1, 1). Gaius mentions the law of nations (ius gentium) explicitly in the above mentioned fragment in a way that he relates it to “natural ratio” – natural order or natural reason. Gaius defined the concept of ius gentium two centuries after Cicero. Unlike Cicero who was more a philosopher than a lawyer and perceived “ius gentium” mainly in an abstract sense, Gaius came up with the concrete concept of ius gentium, which was clearly separated from the concept of ius civile. Ius gentium is the law which is common for all nations. On the other hand ius civile is the law which concerns only Roman citizens. Ius gentium is the law which obliges both Romans and foreigners, because its basis is “naturalis ratio”. In addition, Gaius, in characterizing ius gentium, gives attention to two elements: a) any standards apply to all nations; b) or standards come out of natural reason (naturalis ratio). Gaius in this way presented two perspectives on one and the same ius gentium which are intrinsically and therefore necessarily linked. The first point of view is concrete and the second one is abstract. In other words Gaius presented some legal institutions which belong to the area of ius gentium from the concrete point of view, the other ones from the abstract point of view, which is based on the so-called “naturalis ratio”. As far as the category of ius naturale is concerned, Gaius, in terms of content, identified it with ius gentium. So ius gentium differs from ius naturale only on the basis of a point of view, which individual standards or legal institutions are expressed through. If legal standards are expressed from the concrete point of view (i.e. in standards there is an explicit mention that they apply to all nations), then they can be included in the category of ius gentium. If they are formulated from the abstract point of view (i.e. in standards there is a mention of their origin from “naturalis ratio”), they can be included in the category of natural law.
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Rome in the republican period used to allocate public services, building projects etc. to private contractors. Locationes censoriae was a main legal tool to that end. The system of legal rules was developed, which operate on the border of the public and private sectors producing a legal, economic and political intertwining of both spheres. A sophisticated set of rules introduced by custom and maintain by tradition, determined the procedure of enactment of intention to make a contract and auction to choose a contractor with whom to conclude a contract. Its rules covered also the way to secure the position of the state either by way of a real right (ownership, right of pledge, mortgage) or by additional debtors (personal security), usually both, which could lead to severe responsibilities for contractors and their guaranties.
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The issue of expropriation in Roman law has on numerous occasions been the subject of scientific research. The researchers have tried to explain the meaning of the term expropriation and show its role from a legal and social point of view. In Roman law, expropriation was referred to as publicatio and the right to expropriation was called ius publicandi. Difficulties associated with determining whether expropriation existed in Roman law results mainly from lack of source texts. On the basis of only brief information, various theories are currently being put forward. Some researchers believe that expropriation existed, others deny it. Preserved source texts, although few in number, argue that the institution existed in the Republic. What's more, it can be called the prototype of modern expropriation. It had to fulfill similar and often the same requirements that modern expropriation must meet, and thus there had to be a public purpose, expropriation was a last resort, and the expropriating party was burdened with the liability for compensation.
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The aim of the article is the analysis of the legal and literary sources referring to the issue of supervision over the activity of bankers (nummularii). The considerations carried out proved that the aediles, provincial governors or Urbis praefectus, exercised supervision over the bankers. Each of these officials had separate competences as part of the supervision of nummularii. The banker’s activity was important from the point of view of public interest, which is why it is not surprising that the Roman officials held extensive control over the activity of bankers.
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The aim of the paper is to discuss some issues concerning the origins of the formula Octaviana which provided protection of individuals, who performed a legal act under duress. The research carried out allows to believe that introduction of the formula was related to the proscriptions during Sulla’s dictatorship, and it is probable that the dictator himself, under the influence of Cicero’s Pro Roscio Amerino, allowed it to be included in the pretor’s edict. On the basis of Seneca’s controversies, it is possible to suppose that in the early Principate there were discussions concerning the problem against whom the protection measures given by the praetor in case of metus could be used. It seems that, according to prevailing opinion, it was not the one who used force, but the one who benefited from it.
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In Roman law, a precondition for testamenti factio activa was having freedom. In the Classic and Justinian Law the major matter that was considered while determining succession in case of death, was whether the testator was a free person. This generally does not raise major controversies. Statements of classic jurists, amongst others, refer thereto in Justinian Digests and imperial constitutions. It is not affected by the fact that in the preserved source material of Roman law, one can find a fragment from Titulae ex corpore Ulpiani, which grants public slaves the capacity to manage half of their peculium, should they have any. Such a possibility was not present for private slaves even if they possessed peculium profecticium. They also could not obtain the consent of their owner in this scope to carry out such legal action, because the ability to draw up a testament was classified in public law, not private law, which cannot be changed on the grounds of any agreements. However, this privilege is not known to Justinian law. Again, the privilege of testamentary capacity for public slaves is granted by the Byzantine emperor – Leon VI Philosopher.
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The constitution of Emperor Honorius dated in 422 AD was issued to eliminate wrong practices in relation to the execution of claims for an outstanding loan secured by a pledge set against cultivated land. Such lands were the property of middle-class landowners but the borrowers were free and non-free managers of the estates. The execution of claims was backed by the classical actions of quod iussu and de peculio in order to link the owner of the land with the contract of mutuum. In some situations creditors asked these powerful men (potentiores) for assistance in court. The Emperor in accepting a widening of the subjective scope of actio de peculio and actio quod iussu tried to restore the rules known to classical Roman law: the impossibility of burdening the land with a pledge without the awareness and consent of the landowner, the requirement of addressing the claims to the debtor in first, the prohibition of seeking the patronage of potentes in courts, the requirement for evidences of authorization in the case of actio quod iussu. Creditors who violated the law of Honorius could lose their action against debtors.
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For Roman law, the 16th and 17th centuries were a period of humanism. Lawyers who were active at that time were referred to collectively as the so-called elegant jurisprudence. The overview of the opinions of French humanist lawyers on the issue of societas leonina put forward in this article indicates that in principle they assumed such contracts to be invalid, following the example of Justinian law and medieval glosses. However, their understanding of the term differed. Thus, Iacobus Cuiacius and Duarenus understood a leonine partnership to be one in which the profit earned was accrued entirely to one partner, while the other had to bear all the losses (Balduinus considered it even worse than leonine). Cuiacius went further than that, deeming a partnership to be invalid if one of the partners partially participated in the losses while not receiving any profits. The first one to label such a partnership as a societas leonina was Donellus. The situation would differ, if – according to the concluded contract – one of the parties were only entitled to a minuscule share of the profits, while participating in the losses (societas nummo uno). According to Connanus, such contracts were valid, since a minimum contribution to a partnership should entitle one only to a minimum share in the profit, while the person contributing a lion’s share as investment should also correspondingly receive a lion’s share of the profits. The validity of such an agreement was questioned by Dionysius Gothofredus, who considered a partnership to be a societas leonina not only where one of the partners bore only the losses without any share in the profits, but also where the contract stipulated that one of the partners only had a negligible share in the profits. Antoninus Faber proposed yet another solution for cases where a societas nummo uno was concluded: according to him, the minimum ratio between the respective shares of the partners should be determined by a judge according to the principles of honest judgement. Alternatively – and this solution was considered an even more appropriate one by Antoninus Faber, the shareholder who incurs all or most of the losses should have at least one fourth of the profit.
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Emperor Hadrian was known for his sympathy for Greek culture. As a result of this he passed a statute regulating the sale of fish in Attica. However, the Emperor paid particular attention to Athens and decided to pass an imperial constitution (edictum) regulating the oil trade. The document has been preserved on the western gate of the Roman forum, but in a few places it contains gaps in the text that unleash its full analysis. The preserved regulation allows to show the sense of Emperor Hadrian’s market policy. The main issue was to regulate the sale of oil and its supplies to Athens, with simultaneous indication of crimes and penalties as well as the procedure before the administration of justice in the event of violation of the provisions of the edictum Hadriani de re olearia.
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If any society requires a regulating legal system which establishes certain norms of conduct within any specific community, then Law is conditioned, not only in orientation, but also in functioning, terminology and progress, by social principles, religious beliefs, ethic convictions, ideology, and political, technical, economic or cultural values belonging to that society. In this way, the legal concepts acquire a concrete significance throughout a particular social order and define the prevailing monocultural nature of Law, apart from sciences’ universalism. On the contrary, this paper studies a part of Law which has a multicultural level, due to its linguistic constancy. We refer to the Latinisms still applied nowadays in law texts as a firm evidence of the Roman Law, the oldest core of all European legal systems. Their peculiarity and legitimacy in Law texts raise important issues about its reception, usage and translation.
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