scholarly journals PRAWO RZYMSKIE W ŚWIECIE WSPóŁCZESNYM WEDŁUG HENRYKA KUPISZEWSKIEGO

2016 ◽  
Vol 15 (2) ◽  
pp. 123
Author(s):  
Janusz Sondel

Roman Law In The Contemporary World According To Henryk Kupiszewski Summary The 1988 publication of Henryk Kupiszewski’s book on Roman law and the contemporary world (Prawo rzymskie a współczesność) was a milestone in Polish scholarship. It was written in reaction to the attempts which had been continually undertaken under the People’s Republic of Poland to remove Roman law from the teaching syllabus. The book triggered vociferous protest against the attempt to turn the faculties of law at Polish universities into vocational colleges, at the same time stimulating research on Roman law, not only in its historical aspect but also from the point of view of its value for the present times. An image emerged of Kupiszewski as an outstanding scholar of the humanities, for whom the ethical values in Roman law were just as important as the institutions it created which were subsequently adopted by the legislative systems of latter-day civilised states. Professor Kupiszewski, an advocate of the theory of continuity in the Roman culture and civilisation following the Germanic invasion, drew attention to two factors which turned out to be particularly relevant for the continuation of Roman law – education and the notarial service. He held that especially the latter was of seminal importance, since the formulas notaries reproduced time and again in documents carried the precepts of Roman law well into the Middle Ages. He attributed a special significance to the inspiration Roman law engendered, which he saw as its principal contemporary value. And one can hardly disagree if one recalls a remark he made, that “Justinian’s compilation is a rich store full of things that are required nowadays” is still being confirmed in the work of today’s specialists in civil law.

2021 ◽  
Vol 2 ◽  
pp. 55-62
Author(s):  
E.M. Senotrusova ◽  
◽  

The article considers the essence of the category of guilt as one of the grounds for prohibiting (suspending) activities under Russian civil law. The article analyzes the shortcomings ofthe legal definition of guilt stipulated in article 401 of the civil code of the Russian Federation due to the mixing of objectivist and subjectivist concepts. Based on the analysis of the judicial practice of the application of Article 1065 of the Civil Code of the Russian Federation, a conclusion was made about the unsatisfactory state of law enforcement in establishing guilt in a person’s behavior. Monuments of Roman law are studied for the purpose of revealing the category of guilt. A brief overview of approaches to the concept of guilt in the civil legislation of a number of foreign countries and in the Model rules of European Private Law is given. The positions of the Supreme Court of Austria and the countries of the Anglo-Saxon legal family are given on this issue. The article briefly covers the integral theory developed By E. A. Kramer for the objective assessment of individuals ‘ discretion in conducting any activity that may entail adverse consequences for third parties. In connection with the special functions and purpose of the Institute of responsibility in private law and institute for the prevention of harm, the conclusion is defended that it is unacceptable to directly borrow the category of guilt from criminal law to civil law. The article substantiates the need to apply the objectivist concept of guilt in civil law as a deviation from the standard of behavior of an ordinary reasonable participant in the turnover, taking into account individual characteristics of a person. Taking into account the provisions of the current civil legislation on liability, a conclusion was made about the possibility of applying a simplified scheme of forms and types of guilt, including when deciding on the establishment of an injunction. The question of the ratio of guilt, considered from the point of view of the objectivist approach, and wrongfulness is touched upon.


2021 ◽  
Vol 14 (3) ◽  
pp. 355-368
Author(s):  
Marek Sobczyk

On the Usefulness of Research into Roman Law – Some Reflections on the Joanna Kruszyńska – Kola’s Dissertation Ratio przedawnienia [The ratio of prescription] In this paper I present my personal opinion on the role of present-day research into the history of law, especially into Roman law, referring to the wider issue of the usefulness of Roman law in the future development of private law. I emphasize the clear deficit of communication between historians and proponents of modern law doctrine. This shortcoming is manifested in the lack of interest that lawyers tend to display in achievements in the field of legal history, and is proved more concretely by the fact that the references to the history in monographs on civil law are often only superficial and fragmentary. Unfortunately, legal historians rarely try to initiate any real dialogue with the practitioners of civil law doctrine. This approach offers a profound and compelling study, which both takes the present point of view into consideration and tackles many of the questions that are important and interesting today. I intend to indicate at least some basic issues that should be taken into consideration by legal historians who want to pique other lawyers’ interest in their works. In my opinion, the most important aspects are the choice of an attractive topic, that is not confined only to history; proper identification of the detailed issues, including such issues as are crucial and interesting today; and in-depth analysis of both current law and the discourse held in modern doctrine. It is significant to combine the appropriate historical methodology with the need for an attractive and communicative presentation of the research and its results. In her dissertation on the ratio of prescription Joanna Kruszyńska-Kola proposes an excellent method for improving communication with proponents of modern law doctrine. I am convinced that her work brings substance to the vision of research into the history of law which is described in my paper, for that reason I demonstrate how the author managed to achieve the purpose that legal historians should be pursuing.


Author(s):  
Jean-Louis Halpérin

Lex posterior derogat priori, lex specialis derogat generali, Guidelines for a history of conflicting norms with a focus on these two competing solutions. – The two Latin maxims, Lex posterior derogat priori and Lex specialis derogat generali, sometimes presented as evidentially logical, have a complex history and a delicate relationship (whereas the latter can contradict the former). They take their origins in the Digest, but in rather paradoxical forms: Lex posterior is coming from a text written in Greek by Modestinus, lex generalis is induced from a general regula exposed by Papinianus. How have these two ways of resolving the problem of conflicting norms emerged in Roman law? How have they been quoted and explained in canon and in civil law during the Middle Ages? How have they been used by sovereigns and in which scope do they serve the foundations of modern States? This paper tries to answer these questions by analyzing texts where the two maxims are mentioned and proposes to treat this subject as a significant chapter of the history of the sources of law.


2018 ◽  
Vol 64 (1) ◽  
pp. 9-37
Author(s):  
Paulina Święcicka

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).


Art History ◽  
2021 ◽  
Author(s):  
José-Luis Senra

The history of the Visigoths constitutes an important period of transition from Antiquity to the Middle Ages. Through a fractured and troublesome process of settlement, political-religious stabilization, and territorial rule, the Visigoths established one of the most influential and developed European kingdoms toward the latter part of their reign. Like the other so-called Barbarian peoples, they oscillated between perpetuation of the omnipresent Roman culture that they had replaced and their own original contributions (Guzmán Armario 2005, cited under General Overviews). Their legislation, form of government, and institutions reached maturity in the 7th century, a point at which they achieved both religious unity and complete territorial rule of the Iberian Peninsula. Numismatic testimony allows us to verify this gradual process of attaining a unique identity. In some cases, they pursued the Roman legacy to an intense degree. We know, for example, that the land-owning aristocracy maintained the latifundium system with the use of slaves or free farmers. From the point of view of the administration of justice, the essential text was the Visigothic Code, or Liber Iudiciorum, which came into effect in the middle of the 7th century and was an adaption of older materials (Pérez-Prendes y Muñoz-Arraco 2004, cited under Institutions) that evolved throughout the second half of the century and constituted a key component in the transformation of medieval Spanish kingdoms. The numerous models issued by the successive councils produced effective social coordination. Because the monarchy was beset by a lack of continuity and problems of succession, during their final days the Visigoths instituted a new procedure for monarchic legitimation: anointment (beginning in at least 672 with Wamba), which became the highest expression of the monarchy, established by the divine grace that crystallized a theocratic power. Its efficacy as a tool of legitimation is evidenced by the fact that it was adopted a century later by the Carolingian monarchy. The continuation of the Roman substrate is also evident in ecclesiastical organization, in which the shelter of an energetic Christianity allowed for a reorganization of spaces in favor of the figure of the bishop (Ripoll and Gurt 2000, cited under Urbanism). The so-called episcopal groups were promoted as visual platforms of the religious and civil power held by the bishops held, who were also promoted as the defenders of urban spaces. Centers for devotion to martyrs were also built outside the cities; these were true centers of social cohesion that actively revitalized suburban areas. The era also witnessed the foundation of important urban centers, some of which stand out for their palatial character: Reccopolis, an initiative of King Leovigild, as a genuine exercise of power emulating the Roman and Byzantine Empires (e.g., Adrianopole, Constantinople, and Nicaea) (Olmo Enciso 2000, cited under Urbanism). Historians traditionally, although not unanimously, have associated Reccopolis with the site of the Cerro de la Oliva (in Zorita de los Canes, Guadalajara, near Madrid). Outside the cities, several rural monastic settlements stand out for their role as nuclei of interaction and cohesion between the important landowners and the Hispano-Roman farming population (Castellanos García 1999, cited under Monasticism). Beyond the phenomenon of the hermitage, which already existed in the 5th century, the period saw the establishment of various monastic rules, yet given our scarce archaeological knowledge, we are far from understanding the ways in which these religious establishments were planned (Campos Ruiz and Roca Meliá 1971, cited under Monasticism). The Visigoths’ revitalization of Roman culture, which took place gradually until the beginning of the 7th century following the Empire’s collapse in the late 5th century, is often ignored; however, on the basis of early writers such as Isidore of Seville, Eugenius of Toledo, Braulio of Zaragoza, Julian of Toledo, and Ildefonsus of Toledo, some authors have begun to talk about a Roman “renaissance” (Díaz y Díaz 1976, cited under Education and Culture). The 7th century in Spain therefore denotes a period of growth that would come to an end with the fall of the kingdom in the early 8th century. Nonetheless, the study of the ecclesiastical architecture that has survived into the current era does not offer any clear conclusions, in part due to the debate surrounding the chronology of many of these structures. Moreover, it has been even more difficult to trace a comprehensive chronology of typologies and, with it, to detect possible liturgical variations based on changing contexts. The standstill in the scholarly debate between “Visigothists” and “Mozarabists” concerning the interpretation of these architectural structures compels us to trust in the progressive results of urban architecture (Ripoll 2012, cited under Architecture and Archaeology). We can conclude by affirming that the Visigothic period signifies a moment of utmost importance, not only for the transfer of a large part of the rich Roman legacy, but also for the subsequent creation of medieval mentalities based on the historical mythification of the period. These would also progressively be drawn into a debate over the national identity of Spain, starting with the beginning of the modern age (Geary 2002, cited under General Overviews), and often at the expense of our knowledge of the rich Andalusi legacy that followed it.


2019 ◽  
pp. 203-215
Author(s):  
Beata J. Kowalczyk

The doctrine of Rhodian law of jettison has a long history in Roman law and has been inherited by numerous legal systems of today. during the pre-classical period of Roman law, Rhodian law was incorporated in the Roman legal system, and probably it was implied in all contracts of carrying goods by sea. Rhodian law was also a prototype of a claim for damage suffered in another person’s interests in Polish civil law. The Author presents the origin of general average, the reasons of the introduction of this regulation, as well as its function in roman law and Polish civil law. The article explores the premises of the regulation and provides its comparative analysis. Art. 438 of the Polish Civil Code of 1964 is rarely used in practice due to many competing actions that can be taken by suffered persons. From the point of view of the purpose of this regulation, the most important is to encourage third parties to intervene in the interests of others, which is desirable preventive behavior that can be recognized as a quasi- preventive remedy and is necessary in today’s society.


2019 ◽  
Vol 35 (4) ◽  
pp. 73-102
Author(s):  
Juan Palao-Uceda

This article tries to return to the essence of civil law which, with a little more than ten key contractual institutions, allows all disputes created from newly founded institutions to be examined and interpreted. If law is science it must be ableto be reduced to a set of basic concepts that have been coined and concluded from daily contractual practice and, almost in their entirety, have been in force over time. Hence the study of Roman law and Roman legal tradition remain a constantreference to our continental law. However, this does not prevent them from being open to gradual enrichment.


1998 ◽  
Vol 2 (2) ◽  
pp. 158-179 ◽  
Author(s):  
John W Cairns

This article, in earlier versions presented as a paper to the Edinburgh Roman Law Group on 10 December 1993 and to the joint meeting of the London Roman Law Group and London Legal History Seminar on 7 February 1997, addresses the puzzle of the end of law teaching in the Scottish universities at the start of the seventeenth century at the very time when there was strong pressure for the advocates of the Scots bar to have an academic education in Civil Law. It demonstrates that the answer is to be found in the life of William Welwood, the last Professor of Law in St Andrews, while making some general points about bloodfeud in Scotland, the legal culture of the sixteenth century, and the implications of this for Scottish legal history. It is in two parts, the second of which will appear in the next issue of the Edinburgh Law Review.


2000 ◽  
Vol 4 (1) ◽  
pp. 3-18 ◽  
Author(s):  
WDH Sellar

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.


2017 ◽  
Vol 15 (2) ◽  
pp. 9-22
Author(s):  
Marek Maciejewski

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.


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