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Codification represents the regulation of a certain field (branch) of law by a comprehensive law called the Code (the Civil Code, Criminal Code, etc.). The success of codification depends on two very important conditions: the first one refers to the existence of a dedicated authority, and the second one concerns its implementation in a great country. For the purpose of research, there will be selected the national legislations in order to demonstrate, through various legal systems, how civil codes regulating the field of civil law were originated. Within the scope of this paper, in more detail, we are going to analyze the selected national legislations of France, Austria, Germany, Switzerland and Italy.
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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.
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This article discusses the matter of the liability of professional slave-sellers for non-disclosure of a material defect to the buyer under Roman law. After first examining the professional sellers’ representation and image as reported in the relevant sources, the article reviews the material defects of slaves for sale through the lens of jurists’ and other relevant authors’ discussion on morbus et vitium, and how the two relate to the sellers’ claims in regard to the slaves they are selling. Next, the article provides an overview of the buyer’s legal protection in the event of a found defect or false advertising, specifically in the form of actio redhibitoria. By analyzing legal and other relevant ancient Roman sources, this article probes the fine line between allowable sales talks and legally binding sales promises on a number of peculiar slave sale contracts under Roman law. Lastly, the article argues which party to the sale contract had the less favorable position in terms of carrying the risk of the unintentionally undisclosed material defects in the classical Roman law and explores the point at which the limits to advertising end and the seller’s liablity begins.
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The article is devoted to the subject of the right of pardon in the Polish legal system. The study depicts the essence of the right of pardon and answers the question whether this right, as expressed in Article 139 of the Constitution of the Republic of Poland, can be realised only within the scope defined in Chapter 59 of the Code of Criminal Procedure, entitled “Clemency,” or if the term “right of pardon” has a wider meaning than “clemency,” e.g., so as to permit application by the President of the Republic of Poland, at every stage of the proceedings, of so called individual right of pardon. Moreover, the article discusses the latest case-law of the Supreme Court and the Constitutional Tribunal on the right of pardon and formulates a number of postulates de lege ferenda regarding the analysed question.
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Byzantine legal monuments influenced the development of the feudal written law of the Romanian Principalities. Byzantine secular and ecclesiastical laws were first used in Slavic translation and then translated into Romanian. During the Phanariot rule, the Byzantine legal texts were sometimes used even in the Modern Greek language, as evidenced by the court books of the time. The Byzantine domination of the 10th - 13th centuries stimulated the development of feudal production relations and the consolidation of overlapping native strata. At the same time, the existence of the feudal law, allowed the natives to come into direct contact with the Byzantine law that they kept and circulated in the North of the Danube. In these conditions, we can talk about the phenomenon of reception, which on the territory of our country presented specific aspects, related to the persistence of Roman-Byzantine legal traditions.
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At the beginning of the XIX century, the idea of revolution, be it bourgeois or socialist, had a deep influence on the resurrection of the Serbian state, its duration and development. Naturally, the influence of these qualitatively different revolutionary ideas on the statehood of the Serbian people in different periods was not of the same intensity. Namely, the ideas leading to the achievement of the French Revolution in 1789 primarily exerted a powerful influence on the resurrection of the Serbian state, i.e. they awakened the national awareness of the Serbs as a single people, scattered in two empires - the Austrian and the Ottoman empires - as well as the need for their national liberation and unification. This specific national awareness, first of all, grew among the Serbian middle class in southern Hungary at the end of the XVIII century, under the influence of the French Encyclopaedists and the western Philosophy of Enlightenment, and then it spread among the Serbs in the Ottoman Empire. France and French revolutionary ideas played a constant and manifold role in building a Serbian state, at that time. First of all, the need to create a single national state, incorporating Serbs from the Ottoman and the Austrian empires, was rooted in the ideas on which the French bourgeois revolution was founded and accomplished. However, the French Revolution is also to be credited with opening the Yugoslav dimension of the Serbian question. Namely, in creating and spreading his Illyrian province, particularly from 1809 to 1814, Napoleon endeavoured to cultivate a national awareness among Serbs (in Dalmatia) that differed from the national awareness of the Serbian insurgeants inJSerbia. The creation of the Illyrian provinces, as the first administrative community of Serbs, Croats and Slovenes under a single name, and with one national language, was intended to serve this purpose. After the end of World War I, a common state of Southern Slavs was created, based on the ideas bom in the French Revolution. This was to be a Yugoslav democratic nation-state, on the model that had come into being in England, France and the United States. From the aspect of international law, this joint state was an old state (because it was a prolongation of Serbia, recognised at the Berlin Congress of 1878), but from the viewpoint of Yugoslav constitutional law, it was a new one. Thus, Serbia ceased to exist as a separate state subject. A second, federally constituted Yugoslavia arose from the ashes of World War II, based on the principles of the socialist revolution in Russia. With the fall of the communist world and the USSR, this state disappeared and the world was again confronted with the Serbian question. Evidently, the ideas of a bourgeois-liberal revolution, contributed to the revival and successful development of the Serbian state. The ideas of the other, socialist revolution, emerged as one of the causes of the uncertainty of its future.
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In the first part of his paper tlie author analyzes general problem of ballance between freedom and limits of its use from historical point of view, taking ancient Greece as a starting point. He also outlines legislative regulation of religious freedom in comparative constitutional history and international law. He points to the initial guarantee that no one should suffer adverse consequences because of his religious conviction, to shifting the emphasis on the freedom to change one's religious belief (Universal Declaration of Human Rights 1948 and the European Convention on the Protection of Human Rights and Fundamental Freedoms 1950), as well as to slight emphasis on the right to retain one's religious conviction, by formulation „freedom to have or to adopt religion or belief of his choice" (International Convenant on Civil and Political Rights 1966). However, intense spreading religious groups and sects, have aroused concern among some West European states and European institutions, especially the Council of Europe, so that more attention is going to be paid to the question of legal regulation of abuse of religious freedom. On the other side, the author draws attention to the recent International Religious Freedom Act of 1998. Although it represents a national legal act of the USA, because of the nature of the mechanism of sanctions, it has essentially international implications. Its aim is full attainment of religious freedoms in the world and especially prevention of imposing limitations on the freedom of activity of new religious movements through the national legislations. In the second part the author points that there is a complete loophole in regulation of religious freedom in the legal system of the Republic of Serbia and FRY, particularly since the Law on the Legal Position of Religious Communities (1977) was revoked in 1993. The author points out that the future legislator will be confronted with contradictory demands: to ensure full freedom of religious convictions in keeping with the latest international requirements, on the one hand, but also, on the other hand, to prevent abuse of religious freedom, which is often the case not only in this country. He sees the solution primarily in the positive measures taken by the state (introduction of religious instruction in schools, chaplancy in the army, religious assistence in prisons, hospitals and old age homes, improving media information, denationalization of church property so as to strengthen its ability to defend the existing religious convictions, more effective application of the existing legal mechanisms). Resorting to special legislative measures in criminal law is to be avoided, nevertheless developement in some Western European countries could lead to this effect in the near future.
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From the abundance of information the statesman, military commander and writer, Josephus Flavius provides on the Roman conquest of Judea in the first century A.D., we single out and examine in this paper what he recorded about slaves. The aim was to check and study what is generally known about slavery in the age of Antiquity, with the details given by Flavius. The first part of this work deals with the slaves owned by Jews, regardless of their ethnic origin and how they came to be slaves. Like everywhere else in the ancient world, the slaves who lived in the palaces of rulers and noblemen (familia urbana) enjoyed a better position. Educated slaves, who had the confidence of their masters, were entrusted with various assignments and missions, even with organising conspiracies. The slave-women in palaces worked at the weaving loom or produced other handiwork, and were also selected as concubines. Their price was sometimes high. Details as to how slaves were obtained are very scarce. The soldiers taken prisoner in battle did not always become slaves, but captured Romans were immediately put to death, if they did not commit suicide. It was the rule that a Jew could never be the slave of another Jew. In the Roman empire, the word slave was also used for people who had the status of peregrini. In this way, Eleazar, the defender of the Fortress of Massada, called on the people and the army, to commit suicide collectively before the Romans overran the fortress, and in his speech described their earlier status as peregrini, as “harmless slavery”. On the other hand, examples are mentioned in which slaves and freemen demonstrated great devotion and love for their masters. However, a master also had the right to inflict severe punishment on his slaves, which Flavius considered to be his natural right. According to “patriarchal laws” a military commander was forbidden to surrender to the enemy, among other things, so as not to become a Roman slave. The second part of the paper deals with Roman slaves who originated from Judea. There is less data about this with even fewer specific details. A more thorough description exists about the fate of the population of Jerusalem after Vespasian captured the city. Otherwise, Flavius also mentions, but also of the terrible fate of the Jews, after Jerusalem was finally taken. Lastly, law historians, for instance, may find an interesting example in the manner in which Vespasian liberated Josephus Flavius from slavery, after the latter had spent two years in captivity, chained in a prison. His chains were severed with an axe, which symbolised that he had been granted the status of a freeman. Little is known about freemen, but such data speaks of the great confidence their patron showed to them. The best known freeman, of course, was Josephus Flavius himself, who become a peaceful Roman citizen, dedicated to writing the history of the Jewish people.
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The paper analyzes statistical data on property crime in the Kingdom of Yugoslavia in the period from 1924 to 1939. The analysis includes the manner of collecting and publishing data on the overall structure of crime by the General State Statistics Office of the Kingdom of Yugoslavia, as well as the organization of courts in the Kingdom of Yugoslavia. The author also explain the difference in the way of presenting data on crime in statistical yearbooks according to the legal categorization of criminal offenses. The paper presents data on adults and minors convicted by decisions of first-instance, district and county courts from 1922 to 1939. Criminal offences against property were predominant in the overall structure of crime. According to the data from district and first-instance courts, the most common property-related crime was theft, while the data from county courts show that the most frequent crimes were theft and petty theft (misappropriation of another’s movable property, food and small-value life necessities). The structure of recorded property crimes indicates that the crimes were primarily caused by poverty and difficult economic situation of the population in times of hardship. It is confirmed by the fact that both the total crime rate and the total property crime rate in the Kingdom of Yugoslavia were at the highest level during the World Economic Crisis in the period from 1929 to 1932.
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The paper deals with the legal protection of honor and reputation through different historical time-periods. The available bibliography usually considers the issue within a specific time-period, such as the Roman times or the Middle Ages. Therefore, the aim of this paper is to provide a historical overview of the protection of the right to honor and reputation, from its initial recognition and protection within religious texts to the modern laws. In the classification of personality rights by parts of legal theory and international (human rights) documents, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), honor and reputation are not expressly recognized, but subsumed under the right to privacy. This paper attempts to show that honor and reputation have throughout history been acknowledged as inherent aspects of humanity and perceived as independent interests worthy of protection.
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In legal methodology (usul al-fiqh), the problem of the defining istiḥsān and the legitimacy of its definition is among the critical discussion topics. To overcome the rigorism of law, istiḥsān was used by the founder scholars of Ḥanafī school of law and Malik b. Anas (d. 179/795)- however this use received various objections. Although the Mālikī scholars also used istiḥsān strong criticisms of istiḥsān have been directed on the Ḥanafīs. After the severe criticism of Muḥammad b.Idrīs al-Shāfiʿī (d. 204/820), the Ḥanafī scholars carried out various intellectual activities to define istiḥsān and to prove that it is legitimate. This process -which started especially with Abū’l-Ḥasan al-Karkhī (d. 340/952) and Abū Bakr al-Rāzī al-Jaṣṣāṣ (d. 370/981), revealed a rich accumulation with the contribution of the legal theorists in other school of laws. It is known that al-Karkhī's definition of istiḥsān has become widespread among the legal theorists, and the legitimacy of istiḥsān in the works of legal theory was based on his definition. AlKarkhī's considerations on the legaliticamy of using istiḥsān can be traced in his student al-Jaṣṣāṣ, in the following centuries, Abū Zayd al-Dabūsī (d. 430/1039), Abū l-‘Usr al-Bazdawī (d. 482/1089) and Shams al-Aimma al-Sarakhsī (d. 483 /1090)’s works. Al-Jaṣṣāṣ' explanations on the legitimacy of istiḥsān begin with the criticism of Imam al-Shāfiʿī's against istiḥsān. He provides the proof of legitimacy for istiḥsān in divided two sub-headings. Al-Jaṣṣāṣ, who deals with istiḥsān in two parts as word and meaning, argues that there is no disagreement about the use of istiḥsān and that all mujtahids accept istiḥsān, and even Imam al-Shāfiʿī, who opposes to the use of istiḥsān, employs istiḥsān in this sense. The type of istiḥsān on which there is a deabte is the istiḥsān used in relation to its meaning. Al-Jaṣṣāṣ states that this use is a qiyas operation; he justifies his point of view by referring to the works of Muḥammad b. Hasan al-Shaybānī (d. 189/805). Indeed, when we look at how Imam Muḥammad explained the istiḥsān’s examples in his works, it is seen that there are two conflicting juristic analogy (qiyas) made in many examples. Moreover, Imam Muḥammad openly considered some types of istiḥsān part of qiyas by stating that some examples “can be included in this type of istiḥsān.” Ḥanafī scholars wanted to break the hostile atmosphere toward istiḥsān by defining and evaluating the istiḥsān in a way that their opponents could accept. The definition of Istiḥsān “to abandon the judgment given to similar ones due to stronger evidence.” has been generally accepted. In this definition, istiḥsān is defined by associating with qiyas, and referred to an istihsan that is presented as the more substantial evidence, and qiyas is the weaker evidence. Although it is appropriate to define istiḥsān in relation to qiyas, the claim that in the definition istiḥsān is put in stronger place than qiyas might casuse to some the contradictions- in particular when the example’s of Imam Muhammad are taken into consideration. Because in most cases, when qiyas conflicts with istiḥsān, istiḥsān is taken. But in an opposite case, qiyas might be taken. Apart from these, there are examples of the types of istiḥsān that al-Karkhī has classified in the works of Imam Muḥammad, but sometimes there are also strange situations such as taking the qiyas by istiḥsān. This also means that the term is not sufficiently defined. The negative attitude towards istiḥsān in some Shāfiʿī circles and the criticisms against the legitimacy of istiḥsān continued in the works of the fiqh method. Istiḥsān is defined as making a judgment without evidence by Shāfiʿī circles. Therefore, they did not accept the abandonment of qiyas, which is a sharī proof, because of istiḥsān, which is a non-sharī notable proof. Based on the examples given by the users of istiḥsān, Ibn Ḥazm (d.456/1064), one of the Ẓāhirītes, claims that istiḥsān opens the door to arbitrariness. According to him, a situation that is accepted as istiḥsān according to Ḥanafīs can be taken as istiḥsān according to Mālikīs. This creates an apparent contradiction. There are some valid points in the assessment of Ibn Ḥazm. Because while it is seen that the istiḥsān of Mālikīs is criticized in Imam Muḥammad's book named al-Ḥujjah ʿalā Ahl al-Madīnah, it can be also found that the istiḥsān of Ḥanafīs is charged in the works of Abū’lWalīd Sulaymān al-Bājī (d. 474/1081), one of the Mālikīs. The criticism toward istiḥsān was continued by Shāfiʿīs such as Abū Isḥāq al-Shīrāzī (d. 476/1083), Imam al-Haramayn al-Juwaynī (d. 478/1085) and Abū Ḥāmid al-Ghazālī (d. 505/1111). While al-Juwaynī sees istiḥsān as a method based on the lust of the soul, not istinbat/legal deduction, al-Ghazālī understands istiḥsān as a personal comment. The main reason for the negative attitude towards istiḥsān is that the content based on the definitions, has been neglected most of the time. However, when we look at the works of Imam Muḥammad, it can be seen that there is a proof of istiḥsān contrary to what is believed-and that this can be sometimes a work, sometimes a necessity, sometimes another comparison, or sometimes a custom.
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The period from 1989 to the present day will undoubtedly receive a chapter all its own in the history of constitutional law, and it indeed deserves special study because of the large number of new constitutions which have been promulgated in Europe in the space of just a fewyears. These constitutions were not the result of a natural process of updating or replacing previous constitutions. On the contrary, they represent the legal codification of the enormous changes that have swept virtually all of the former socialist states in Europe, from Poland to Albania. There are a number of features which these new constitutions hold in common (political pluralism, separation of powers, wide-ranging civil rights and liberties, etc.) and which allow them to be placed in the same category. One such shared institution, resulting from the introduction of the separation of powers as a principle in the organization of these states, invites a comparative study of all these constitutional systems. It is the office of head of state. There are a number of reasons that make this institution particularly interesting. Firstly, all the new constitutions of the former socialist states have opted for a bicephalic executive, dividing power between the head of state and the prime minister and his cabinet, so that the first question that automatically imposes itself is how they compare with the known theoretical models and constitutions in the world.
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