Tipping the Scales of Justice: Roman Law as a Resource in Medieval Legal Discourse

2020 ◽  
pp. 219-229
Author(s):  
Thomas Rüfner
Keyword(s):  
Legal Discourse ◽  
Roman Law

Transformation of legal language – Early Byzantine legal discourse

2017 ◽  
Vol 2 (1) ◽  
Author(s):  
Jaakko Husa
Keyword(s):  
Legal Discourse ◽  
Legal Culture ◽  
Linguistic Analysis ◽  
Cultural Transformation ◽  
Point Of View ◽  
Sixth Century ◽  
Roman Law ◽  
Legal Language ◽  
Linguistic Change ◽  
Early Byzantine

AbstractThis article examines the complicated legal-cultural process in which Roman law became Byzantine law and Roman legal discourse altered into Byzantine legal discourse. Roman law’s transformation into Early Byzantine law is analysed from the point of view of legal language which mutated from Latin to Greek. The approach is legal cultural and legal linguistic and focuses on the overall shape and general patterns. The goal is to highlight how legal-cultural transformation was incremental, language-bound and that there was no radical or sudden culmination point. Moreover, the analysis answers generally to the question of why sixth-century Byzantine legislative Greek contained frequent Latin loans, expressions, phrases and distortions. The discussion concentrates on the Novellae as an integral part of the process of legal cultural and linguistic change from Roman to Byzantine. Instead of going into detailed linguistic analysis, this article underlines generally the contextuality of law and the importance of legal culture

Law’s Nature: Philosophy as a Legal Argument in Cicero’s Writings

Cicero's Law ◽  
2016 ◽  
Author(s):  
Benedikt Forschner
Keyword(s):  
Natural Law ◽  
Legal Discourse ◽  
Roman Law ◽  
Legal Argument ◽  
Philosophical Concept ◽  
Positive Law ◽  
Legal Arguments ◽  
Theory Of Law ◽  
Holistic Theory ◽  
Forensic Speeches

The paper deals with the use of philosophical arguments in Cicero's legal writings, in particular his forensic speeches. It tries to demonstrate that Cicero developed a unique, holistic theory of law, which is not based on a juxtaposition of natural law and positive law, but tries to deduce the nature of law from the nature of men. Even though this theory probably did not influence the writings of the later classical jurists in a direct way, Roman law was open enough for philosophical arguments to allow Cicero to make use of this theory within the legal discourse. Using examples from Cicero's forensic speeches, the paper demonstrates how Cicero refers to his philosophical concept in order to develop specifically legal arguments.

scholarly journals MORALITY AS A PRIMARY REGULATOR OF CONTRACTUAL RELATIONS IN THE FRAMEWORK OF A NORMATIVE THEORY OF PROMISES IN A LEGAL DISCOURSE OF THE COMMON LAW COUNTRIES

2017 ◽  
Vol 3 (4) ◽  
pp. 114-119
Author(s):  
Радмила Макарова ◽  
Radmila Makarova
Keyword(s):  
Law Enforcement ◽  
Critical Evaluation ◽  
Legal Discourse ◽  
Legal Regulation ◽  
Normative Theory ◽  
Good Faith ◽  
Roman Law ◽  
Anglo American ◽  
The Individual ◽  
Moral Attitudes

This article describes the main provisions of the normative theory of promises in the Anglo-American legal discourse. Under this theory, which going back to the origins of natural law concepts, the nature of a civil contract expresses in the volitional act, and the reasons of the obligation of promises are the principles of morality. The author has made a critical evaluation of the position of the normative theory of promises which puts the morality as the primary regulator of the Institute of the contract. As a result the author shows that only morality in a legal dimension, namely the dimension of justice, may act as regulators of the private law. The concept of justice evolves, and today in a civilized society is expressed in two maxima: equality and freedom. And if the first dimension is known back to Roman law and its details was developed by Aristotle, but the humanity has realized the individual freedom as the manifestation of justice not so long ago. The question on relationship of morality and law is as relevant as ever for Russian legal reality, which has been subject of expansion of the good faith principle. Violation of the good faith principle in law enforcement often means the moral condemnation of the behavior of the civil turnover participant. Thus, the morality often goes beyond the justice, and, therefore, outside the scope of legal regulation. In present article the author proves the inadmissibility of such approach. The assumption of morality in the regulation of private legal relations enhances the feeling of legal uncertainty, and becomes a reason of a number of practical problems, in particular, the problem of the source of attitudes, which were conventionally recognized as a moral attitudes, and the problem of the court decision in case of presence of antagonistic moral attitudes, which are equally recognized by the law enforcement authority.

Finium Demonstratio

1957 ◽  
Vol 47 (1-2) ◽  
pp. 39-52
Author(s):  
David Daube
Keyword(s):  
Legal Discourse ◽  
Roman Law ◽  
Private Law ◽  
Unique Contribution ◽  
Main Application ◽  
Actual Working ◽  
Modern Treatment

No apology is needed for presenting a strictly legal discourse to one who, while ranking among the most illustrious Ancient Historians alive, has by his teaching and writing made a unique contribution to the study of Roman Law. Our subject will be the role of finium demonstratio in Roman private law. There is no comprehensive modern treatment, with the result that scholars, confronted by one of the rare references to this institution, are apt to feel somewhat unsure. The difficulty is increased by the fact that in its main application, in the field of warranty against eviction, finium demonstratio partake in the tortuous evolution, classical and post-classical, of the rules concerning this warranty. The same fact, however, also adds to the interest, especially as the actual working of the system of warranty at its various stages becomes much clearer by tracing its bearing on a usage like finium demonstratio.

“I'd make thee eat the mischief thou hast vented”: Discourse of Law in Ben Jonson's Catiline His Conspiracy

2017 ◽  
Vol 24 (1) ◽  
pp. 22-45
Author(s):  
Akihiko Shimizu
Keyword(s):  
Early Modern ◽  
Political Discourse ◽  
Legal Discourse ◽  
The State ◽  
The Political ◽  
State Of Emergency ◽  
Gunpowder Plot ◽  
Effective Use ◽  
Legal Procedures ◽  
The Way

This essay explores the discourse of law that constitutes the controversial apprehension of Cicero's issuing of the ultimate decree of the Senate (senatus consultum ultimum) in Catiline. The play juxtaposes the struggle of Cicero, whose moral character and legitimacy are at stake in regards to the extra-legal uses of espionage, with the supposedly mischievous Catilinarians who appear to observe legal procedures more carefully throughout their plot. To mitigate this ambivalence, the play defends Cicero's actions by depicting the way in which Cicero establishes the rhetoric of public counsel to convince the citizens of his legitimacy in his unprecedented dealing with Catiline. To understand the contemporaneousness of Catiline, I will explore the way the play integrates the early modern discourses of counsel and the legal maxim of ‘better to suffer an inconvenience than mischief,’ suggesting Jonson's subtle sensibility towards King James's legal reformation which aimed to establish and deploy monarchical authority in the state of emergency (such as the Gunpowder Plot of 1605). The play's climactic trial scene highlights the display of the collected evidence, such as hand-written letters and the testimonies obtained through Cicero's spies, the Allbroges, as proof of Catiline's mischievous character. I argue that the tactical negotiating skills of the virtuous and vicious characters rely heavily on the effective use of rhetoric exemplified by both the political discourse of classical Rome and the legal discourse of Tudor and Jacobean England.

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