scholarly journals Prawo rzymskie w okresie Renesansu i Baroku. Humanistyczny wymiar europejskiej kultury prawnej

2018 ◽  
Vol 64 (1) ◽  
pp. 9-37
Author(s):  
Paulina Święcicka
Keyword(s):  
Middle Ages ◽  
Western Europe ◽  
Roman Law ◽  
New Era ◽  
Contemporary World ◽  
Legal Studies ◽  
Ius Commune ◽  
Academic Paper ◽  
Renaissance Period ◽  
Theory Of Law

The history and formation of the European legal culture that had been developing and taking shape since the Middle Ages when universalism manifested itself as ius commune and seemed to be a satisfactory solution, has been marked with the appearance of a trend called ‘legal humanism’ which developed in response to the humanistic Renaissance postulates. While humanism itself pertained to arts and science of the Renaissance period, legal humanism that emerged centuries later, challenged the medieval interpretation of Justinian texts and postulated the rejection of the mos italicus methods described as praemitto, scindo, summo casumque figuro – praelego, casus, commodo, obiicio (Math. Grib. De meth, 3.94-98). The supporters of the new humanistic jurisprudence advocated recognition of Roman law as an element of the research into the Antiquity. As a result, ancient texts underwent a certain ‘purification’ and were subsequently used for the teaching of Roman law based on subsequent „Glosses and Commentaries”. Critical reviews of the fundamental sources of law as well as the first translations of till then unknown Greek texts were also attempted. That all was possible because the jurists of that new era had a much more comprehensible education and linguistic skills and were able to read texts in Greek and finally break away with the medieval impasse Graeca sunt, non leguntur, going beyond the „judicial Bible” of the compilation of Justinian texts only, searching for new and often multi-aspect meanings and a true understanding of the Ancient World. This new approach to Roman law had also changed the attitude to legal studies which ceased to be seen as merely updating the existing laws i.e. serving the practice. Roman law was finally recognised as a historic phenomenon, a product of its times that evolved together with the changing world, and the study of Roman law became an aim and objective of its own. Such an approach quickly found followers in all Western Europe and replaced the exegetic commentaries with a new form – a treaty that compared the theory of law with the existing laws on the basis of its historic context. An author of a legal academic paper was no longer a mere executor and commentator of ius scriptum, but, being a jurist of humanistic views, transformed into a searcher of pure law, an expert of both the Antiquity and the contemporary World. As François Baudouin put it: sine historia caeca est iurisprudentia (De Institutione historiae universae, I, 609).

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.

Alma Mater Studiorum. O genezie i początkach uniwersytetów

2017 ◽  
Vol 15 (2) ◽  
pp. 9-22
Author(s):  
Marek Maciejewski
Keyword(s):  
Middle Ages ◽  
Canon Law ◽  
18Th Century ◽  
Ancient Greece ◽  
Roman Law ◽  
Institutions Of Higher Education ◽  
13Th Century ◽  
New Era ◽  
Conducting Research ◽  
The 19Th Century

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.

11. Roman Law and the European Ius Commune

2020 ◽  
pp. 359-394
Author(s):  
Paul J. du Plessis
Keyword(s):  
Roman Empire ◽  
Western Europe ◽  
Roman Law ◽  
Modern World ◽  
Conceptual Basis ◽  
Legal Tradition ◽  
Ius Commune ◽  
The World ◽  
Common Framework ◽  
Formed Part

The term European ius commune (in its historical sense) signifies that, from the fourteenth to the start of the sixteenth centuries, most of Europe shared a common legal tradition. Many local and regional variations on the law existed, but the terminology, concepts, and structure provided by elements of Roman law provided a common framework. This chapter traces how Justinian’s codification came to influence the modern world. The influence of Roman law in the modern world is immense: it constitutes the historical and conceptual basis of many legal systems throughout the world. Its impact has not been confined to those countries in Western Europe that historically formed part of the Roman Empire. Wherever Europeans went, they normally took their law (usually based to some extent on the principles of Roman law) with them.

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.

The Canonists and the Mediaeval State

1953 ◽  
Vol 15 (3) ◽  
pp. 378-388 ◽  
Author(s):  
Brian Tierney
Keyword(s):  
Political Theory ◽  
Middle Ages ◽  
Common Law ◽  
Real Life ◽  
Practical Experience ◽  
Raw Material ◽  
Roman Law ◽  
Essential Ingredient ◽  
Legal Studies ◽  
The Middle Ages

Maitland once observed that, in the Middle Ages, “Law was the point where life and logic met.” This aphorism of the master must serve as my apology for including in one essay two topics so diverse, according to some opinions, as abstract political theory and concrete constitutional problems. It may be that the mediaeval jurists can provide a link between the two spheres, for their reflections on mediaeval government were not mere philosophical abstractions. They were rooted in real life. An essential ingredient of the jurists' raw material was a practical experience of the workings of mediaeval society. It is not surprising, therefore, that eminent historians on both sides of the Atlantic have called attention to the need for legal studies as a basis for further advance in mediaeval constitutional research, and that, in recent years, we have heard a great deal about the importance of feudal law and folk law, of Roman law and English common law in the formation of mediaeval ideas and institutions. My task will be to state briefly the case for the canonists.

The Emergence of Professional Law in the Long Twelfth Century

2003 ◽  
Vol 21 (2) ◽  
pp. 347-366 ◽  
Author(s):  
Susan Reynolds
Keyword(s):  
Middle Ages ◽  
Twelfth Century ◽  
Legal History ◽  
Western Europe ◽  
Customary Law ◽  
Roman Law ◽  
Early Medieval ◽  
American Tradition ◽  
Professional Law ◽  
Anglo American

The object of this article is to draw attention to an area of European legal history that I think deserves more investigation. It is the change in legal practice caused by the transition from the diffused, undifferentiated, customary law of the earlier middle ages to the various forms of expert, esoteric, professional law that dominated the higher courts of the later middle ages. The suggestion that this has not been much studied may seem odd but, though much has been written on the new study of Roman law, those who work on it have tended to concentrate on the intellectual achievements of the glossators and post-glossators, rather than on practice. Practice in canon law has received more attention, notably from legal historians trained in the Anglo-American tradition, but this has not focused closely on twelfth-century origins. The beginnings of English common law have also been much studied and, since it started off as largely a matter of procedures, that has indeed meant looking at practice. The traditional teleology of legal history has, however, prevented much cross-fertilization with the history of other legal systems. One example of the consequent detachment of English legal history is the assumption of some English legal historians that Roman law procedures were followed in what they often characterize simply as “the Continent” more generally and earlier than seems to have been the case in most areas north of the Alps. Both in England and elsewhere many legal historians concentrate on the period from the thirteenth century on, when sources become more plentiful. Meanwhile, social historians of early medieval western Europe, including England, have argued—to my mind successfully, though I am hardly unprejudiced—that early medieval law was not just a weak, ritualized, and irrational response to feuds and violence, but their investigations tend to stop before the professionals took over. The result is that, apart from recent pioneering work on twelfth-century Tuscany by Chris Wickham, the transition in court practice outside England has been neglected.

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.

scholarly journals Comparisons of Religions in the Ius Commune of the Late Middle Ages: Functions and Criteria

2021 ◽  
Vol 11 (4) ◽  
Author(s):  
Thomas Woelki
Keyword(s):  
Middle Ages ◽  
Social Order ◽  
Roman Law ◽  
Modern Times ◽  
Ius Commune ◽  
Late Middle Ages ◽  
The Social ◽  
Theological Discourse ◽  
Structural Imbalance ◽  
Early Modern Times

In medieval legal commentaries, comparisons of religions served—above all—as an egress from structural imbalance: numerous regulations pertaining to Jews and heretics are contrasted by only a few regulations regarding Gentiles and Muslims. Lawyers applied three main criteria of comparison: a dogmatic proximity to Christianity; a weighing up of the guilt of sin; and the implications for the social order. Depending on the criterion, the results of these comparisons could be varied. The dogmatic proximity of Judaism to Christianity and the social compatibility of Jewish with Christian life continued to be emphasized until early modern times. The privileged position of the Jews, inherited from Roman law, was however ultimately replaced by a comparatively better social position of the Muslims. In the process, fragments of theological discourse were selectively adopted. A special dynamic of legal development can be observed on the Iberian peninsula in particular.

scholarly journals The Will under the Roman Succession Law and its Reception in the Law of the Countries in the Period of the Middle Ages

2019 ◽  
pp. 27-37
Author(s):  
Svitlana Lozinska
Keyword(s):  
Middle Ages ◽  
Canon Law ◽  
Western Europe ◽  
Legal Aspects ◽  
Roman Law ◽  
Legal Norms ◽  
Freedom Of The Will ◽  
The Will ◽  
The Dead ◽  
The Right

The article carries out the comparative analysis of the main criteria to the will in a succession law of the Roman State, in particular, concerning conditions of its reality, formal requirements to a circle of successors, procedures of drawing up and types of wills. It has been established the essence of the principle of freedom of the will. In the XIIth – XIIIth centuries in Western Europe one could fnd the frst codifed collections of laws, the reception of Roman Law, emergence of a municipal right, as well as extension of Canon Law. The Roman Law becomes one of the sources of the medieval right. It has been investigated the reception of legal norms of the will in a medieval Canon Law of Europe. With introduction of Christianity a part of property which belonged to the testator was ceased to be buried and burnt together with a corpse. Instead, it was distributed on charity for the beneft of soul of the dead. The Canon Law of wills was established based on jurisdiction of church and ecclesiastical courts, and the will was considered as the religious act of expression of the last will of the dead. Freedom of the will was considered as freedom to make contributions on religious and charitable affairs. As for the wills, the Roman Law was signifcantly complemented by canonists with two important institutes: an ex- ecutor of the will and appointment of the managing director to distribute property of the person who died without will. The Canon Succession Law enforced protection of interests of the wife of the dead and his children against deprivation of heritage by the testator. The successor was also granted the right to refuse inheritance accep- tance if duties which arose in this regard exceeded his/her opportunities. Thanks to the reception of Roman Law which took place in medieval Western Europe ca-nonists created the new right of wills — partially based on German-Christian institutes and partially on the classical Roman Succession Law which was known to church and was used by it long ago. If there was no will, the Roman Succession Law applied the norms similar to the institute of the German National Law, i.e. its main goal was to provide the successor of the head of the family. However the Ro- man Law defned legal aspects of inheritance much more broadly.

scholarly journals POJĘCIA I ŻYWOTNOŚĆ RZYMSKIEGO PRAWA KARNEGO

2017 ◽  
Vol 3 (1) ◽  
pp. 7
Author(s):  
Luigi Garofalo
Keyword(s):  
Middle Ages ◽  
Criminal Law ◽  
Roman Law ◽  
Public And Private ◽  
Legal Principles ◽  
Ius Commune ◽  
The Enlightenment ◽  
Subjective Element ◽  
Further Development ◽  
Self Defence

THE NOTIONS AND VITALITY OF THE ROMAN CRIMINAL LAWSummary In the recent studies one tends to revaluate the influence of the Roman criminal law on the later penal doctrine, as well as the achievements of the Roman criminal law itself, rejecting the previous theories presenting it as significantly inferior. It is noticed in this study that the medieval jurists idolized the Roman law, adopted it to the new circumstances, and obviously made mistakes interpreting it. And thus the influence of the Roman jurisprudence on the penal doctrine of the ius commune Europe was thoroughly substantial. Notwithstanding the popular opinion also many of the Enlightenment jurists (as, for instance, Gaetano Filangieri and Francesco Mario Pagano) not only knew but also benefited from the Roman criminal law legacy. The doctrine of crime of the successive period was less inspired by the Roman criminal law, which however did not totally lose its significance. It still had some indirect influence, as the nineteenth century codifiers did not stop using the notions of criminal law shaped-up by the mediaeval jurists overwhelmingly impressed by the Roman law.The main part of the study presents a brief overview of the Roman criminal law, especially of the principal rules constituting today the general part of criminal law, principles which could be directly or indirectly found in the experience of the Roman prudentes. It is pointed out that the only Roman lawyer who tried classifying Roman criminal law was Claudius Saturninus (D. 48,19,16). His classification is later discussed in the article as well as some of the crimina (public law crimes), observing that the Romans never separated the Roman criminal law from ius. On this occasion it is underlined that one of the rules often ascribed to the Romans, nullum crimen, nulla poena sine praevia lege poenali, not only was not their own invention but it was clearly contrary to the criminal law practice in their times (the principle itself being probably formulated only by a German lawyer, Feuerbach). The Romans tried describing the subjective and objective element of the crime as well as presenting various defences available to the culprits (e.g., age, necessity, self-defence, mistake, etc).In the last part o f the paper the possible influence of the Roman criminal law constructions on the Middle Ages is pondered over. The often wrong interpretations of the ancient sources led to some embarrassment and paradoxes. This explains Baldus’ famous statement allowing the judge to construe the (Roman) statute according to the principles of the ius commune, which would in turn revive the statute and save it from an inevitable decay. The mediaeval lawyers studied and analysed the figures of deliberate misconduct and unintentional negligence (anyway without further effects in clarifying vague issue o f the subjective element of the crime). Some of the defences, like the most important figure of self-defence, known and elaborated in the Roman law came to the teachings and studies of the doctores in their original shape and significance, sometimes even stimulating further development of the penal doctrine. The mediaeval ius commune jurists adopted Roman considerations applying different responsibility regarding the doer’s age as well as Roman systématisations of the crimes subordinated to various legal principles. And therefore the doctores, following the Roman example, drew a line between public and private crimes, these which were officially prosecuted and those which were brought to court on a basis of a private motion. The jurists distinguished between lay-public and ecclesiastical crimes, between ordinary and peculiar offences, dishonourable and regular wrong-doings. Similarly the mediaeval lawyers took over the Roman considerations about attempt and iter criminis as well as concurrence of crimes and offenders.In conclusion the paper, wishing for a future development of the studies on the subject, summarises that the theoretical solutions and considerations in the Roman criminal law wrought out above by the classical jurisprudence outlived their times and became the source of the doctrinal inspirations in the coming centuries.

Sign in / Sign up

Export Citation Format

Share Document