Protection against Being Passed Over or Disinherited in Roman Law

2020 ◽  
pp. 1-19
Author(s):  
Reinhard Zimmermann
Keyword(s):  
Middle Ages ◽  
Roman Law ◽  
Legal Scholarship ◽  
Ius Commune ◽  
High Middle Ages ◽  
Complex Regulation ◽  
The Law ◽  
Do So

What is today referred to as ‘compulsory portion’ or ‘forced heirship’ was subject to a very complex regulation in Roman law. The development went from family succession to freedom of testation and subsequently led to the establishment of a balance between the testator’s freedom of disposition over his property and the ‘natural claims’ of his closest relatives to benefit at least to some extent from the estate. In the process, the Roman lawyers developed a number of interesting ideas, among them, in particular, protection of descendants by means of form requirements; the availability of a querela inofficiosi testamenti (complaint concerning an undutiful will); and the establishment of a minimum quota to which a testator had to appoint his closest relatives (‘legitima’) as well as the introduction of an actio ad supplendam legitimam for cases where the testator had failed to do so. Justinian also saw the necessity to provide for the testator’s widow; she could, under certain circumstances, demand one quarter of the estate by way of statutory legacy. Unfortunately, Justinian, in his Novel 115, failed in his attempt to simplify and streamline the law. From its inception in the High Middle Ages, therefore, legal scholarship based on the ius commune was faced with considerable difficulties in the application of the Roman rules.

Scots Law: Mixed from the Very Beginning? A Tale of Two Receptions

2000 ◽  
Vol 4 (1) ◽  
pp. 3-18 ◽  
Author(s):  
WDH Sellar
Keyword(s):  
Middle Ages ◽  
Common Law ◽  
General Meeting ◽  
Roman Law ◽  
Mixed System ◽  
Annual General Meeting ◽  
Ius Commune ◽  
Profound Influence ◽  
Anglo Norman ◽  
Considerable Period

This article is the revised text of the lecture delivered to the Stair Society at its Annual General Meeting in November 1997. It defends the proposition that Scots law, from the time of its emergence in the Middle Ages, has been a “mixed” system, open to the influence of both the English Common Law and the Civilian tradition. It also compares and contrasts the Reception of the Anglo-Norman law with that of Roman law. The former was quite specific as regards both time and substantive legal content. The Reception of Roman law, on the other hand, took place over a considerable period of time, and its effects were complex and diffuse. Above all, the Civilian tradition and the wider ius commune provided an intellectual framework against which to measure Scots law. Both Receptions exercised a profound influence on the continuing development of Scots law.

scholarly journals The origin of the institute of procedural substitution in Bulgarian law

2021 ◽  
Vol 16 (3) ◽  
pp. 10-22
Author(s):  
Todor Kolarov
Keyword(s):  
Roman Law ◽  
Ancient Rome ◽  
Legal Regime ◽  
Ius Commune ◽  
The Law

The article strives to analyse the origin of the institute of procedural substitution (for the lack of a better term) in Bulgaria through historic overview, starting with the law of Ancient Rome, going through ius commune and finishing with the contemporary legal regime. From a procedural standpoint, the conclusion is that the institute came into being at the end of the XIX and beginning of the XX century. While manifestations of procedural substitution can be found in the Roman law, this is not an indication of a formulation of the legal institute itself.

scholarly journals Civilians and insurance: approximations of reality to the law

2015 ◽  
Vol 83 (3-4) ◽  
pp. 323-364
Author(s):  
Guido Rossi
Keyword(s):  
Early Modern ◽  
Roman Law ◽  
History Of ◽  
The Subject ◽  
The Law ◽  
Do So

In the study of the history of insurance, much attention has been paid to early modern jurists. Their importance as a source for the study of the subject is, however, debatable. Early modern jurists were more interested in systematising insurance than in describing it for what it was. Their main effort lay in explaining this non-Roman contract in Roman law terms. To do so, something had to be sacrificed - reality.


Framing the feudal bond: a chapter in the history of the ius commune in Medieval Europe

2012 ◽  
Vol 80 (3-4) ◽  
pp. 481-495 ◽  
Author(s):  
Emanuele Conte
Keyword(s):  
Middle Ages ◽  
Legal Reasoning ◽  
Legal Culture ◽  
Roman Law ◽  
Historical Period ◽  
Abstract Concepts ◽  
Ius Commune ◽  
Medieval Europe ◽  
History Of ◽  
Definition Of

In this article I wish to show how history of legal doctrines can assist in a better understanding of the legal reasoning over a long historical period. First I will describe the nineteenth century discussion on the definition of law as a ‘science’, and some influences of the medieval idea of science on the modern definition. Then, I’ll try to delve deeper into a particular doctrinal problem of the Middle Ages: how to fit the feudal relationship between lord and vassal into the categories of Roman law. The scholastic interpretation of these categories is very original, to the point of framing a purely personal relationship among property rights. The effort made by medieval legal culture to frame the reality into the abstract concepts of law can be seen as the birth of legal dogmatics.

Early “Italian” Scholars of Ius Gentium

2020 ◽  
pp. 19-47
Author(s):  
Claudia Storti
Keyword(s):  
Roman Empire ◽  
Middle Ages ◽  
Legal Order ◽  
Roman Law ◽  
Legal Tradition ◽  
Shared Set ◽  
Law Of Nations ◽  
International Legal Order ◽  
The Law ◽  
Ius Gentium

Between the twelfth and fifteenth centuries several issues led jurists to rethink the international legal order established in the Roman Empire and the Early Middle Ages. The first was the need to update the list of the law of nations legitimate subjects after the birth of the commune that had not been accounted for in Roman-law sources. The second was to recreate a superior and universally shared set of ‘public’ law rules for international relations to counteract the tendency of communal and monarchical governments to consider the law inter gentes as a form of internal law. In order to address this issue Bartolus of Sassoferrato adapted the Roman category of ius gentium to the features of the medieval geopolitical context. Other topics focused on defining the enemy, freedom of peoples, and treaties among unequal subjects, while the theory of ius gentium of Alberico Gentili was fully rooted in the medieval and early modern legal tradition.

Isidore de Séville et la construction d’une culture juridique commune au début de l’Europe médiévale

2021 ◽  
Author(s):  
Luca Loschiavo
Keyword(s):  
Middle Ages ◽  
Crucial Role ◽  
Legal Theory ◽  
Roman Law ◽  
Early Middle Ages ◽  
Technical Aspects ◽  
Legal Procedure ◽  
Long Period ◽  
The Law

This paper explores Isidore of Seville’s definitions of legal terms and Roman law concepts during the early Middle Ages. While Isidore was not a lawyer, he played a crucial role on the development of both legal theory and more technical aspects of the law such as legal procedure. Combining elements of Roman and Jewish-Christian traditions, Isidore’s definitions were of the utmost importance during the long period leading to the dawn of the School of Bologna.

scholarly journals Greckie wpływy na powstanie Ustawy XII Tablic : (na marginesie glosy Accursiusa do D. 1,2,2,4)

1994 ◽  
Vol 37 (3-4) ◽  
pp. 39-45
Author(s):  
Witold Wołodkiewicz
Keyword(s):  
Middle Ages ◽  
Roman Law ◽  
Roman Society ◽  
History Of ◽  
Total Lack ◽  
The Creation ◽  
The Law ◽  
The Middle Ages

The problem of Greek influence on the creation and the content of the Twelve Tables appeared several times in Roman lawyers’ records. Amongst few jurists, Pomponius wrote about the influence of Greek cities law on the Twelve Tables in the famous fragment on the history of Roman law from his Enchiridion (D. 1,2,2,3-4). Accursius gave an ample gloss to the fragment. He cites an anecdote on the creation of the Twelve Tables: „Greeks had delegated a wise man to visit Rome in order to estimate, after a discussion with its inhabitants, whether they are mature enough to be presented with the law that was prepared. Romans reached the decision that a fool should confront the Greek: there would be no damage to them if he lost, they thought. Obviously, both had to speak by signs. „The Greek started the duel raising one finger what meant that he believed in one God. The Roman took it as an attack on his eye and showed two fingers, which made three with his thumb, in order to be dangerous for both eyes of his adversary. However, the visitor understood the gesture as an acceptance of faith in one God with addition that He is triune. Referring to that, the Greek showed an open palm - it signified that everything is known to the Almighty. Yet, the fool thought that it is to strike his hand and raised the fist to demonstrate that he was going to defend himself. The wise man from Greece understood it as a statement that God has human fortune in His hand and reigns over all affairs of this world. „After this conversation, the Greek concluded that Roman society is developed in the degree they can be gifted with the prepared statue” . The story is one of the first notes on Greek influence on the Twelve Tables. It shows the total lack o f historic perpsective that was shared by glossators in the Middle Ages. The article contains also some references to the historiography of the Greek influence on the Twelve Tables.

Legal Obstacles

2016 ◽  
Author(s):  
Kenneth Stow
Keyword(s):  
The State ◽  
Personal Life ◽  
Roman Law ◽  
Modern State ◽  
Ius Commune ◽  
The Law

This chapter discusses how the law confers privileges on the Jews as cives, except in the spiritual forum. Nonetheless, while in the Papal State, the privileges of being cives were never entirely erased. It was the burdens and the confessional aspects of ancient Roman Law that came ever more to the fore. To these burdens were added evolving legal interpretations that facilitated the “offerings” and denunciations that upended the life of Anna del Monte and many others. However, Jews were not the only ones affected. The demands of the burgeoning modern state fell ever more heavily, and in new ways, on all residents. Using the tools of ius commune to augment centralized authority, the state began to interfere unprecedentedly in the personal life of its residents.

Bankruptcy and the Praetorian Pledge: The Law of the Books and the Law in Action in the Early Modern Netherlands

2019 ◽  
Vol 80 ◽  
pp. 181-196
Author(s):  
Ilya A. Kotlyar
Keyword(s):  
Early Modern ◽  
Roman Law ◽  
Collective Rights ◽  
Ius Commune ◽  
The Law

The article points out at the discrepancy between the different Mss. of the Roman Justinianic text: Littera Pisana and Littera Bononiensis. The discrepancy entailed that the doctrine of medieval Ius Commune offered stronger protection of the collective rights of the creditors, in comparison with the Classical Roman law. The Roman Dutch “Elegant School”, despite its general reliance on the original Roman sources, already in the writings of Grotius demonstrated allegiance to the medieval doctrine on the issue of bankruptcy. The authors of the “Elegant School” continued to prefer the medieval interpretation of the creditors’ rights and bankruptcy, although Dutch practice was, in many respects, drastically different from the Ius Commune doctrine. This ensured a strong protection of creditors in bankruptcy in Dutch law.

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